
    JAMES B. WALKER v. DULUTH STREET RAILWAY COMPANY.
    
    April 28, 1911.
    Nos. 17,022— (74).
    Damages not excessive.
    In this, a personal injury action, the evidence sustained the verdict in favor of the plaintiff, the damages awarded are not excessive, and the defendant was not entitled to a new trial on the ground of newly discovered evidence.
    Action in the district court for St. Louis county to recover $10,000 for personal injuries. The complaint alleged that before defendant’s car reached Sixteenth Avenue East, plaintiff indicated to defendant’s agent that he wished to leave the car and for that purpose the car was stopped; that there was a steep grade at the point where plaintiff desired to alight and a long distance from the step on. the ear to the ground; that he was seventy-eight years old and had but one hand; that while alighting in a careful and prudent manner, the car was suddenly and without warning put in motion, by reason of which plaintiff was thrown to the ground with great violence. The answer alleged contributory negligence. The reply was a general denial. The case was tried before Dibell, J., and a jury which returned a verdict in favor of plaintiff for $3,355. From an order denying defendant’s motion for judgment notwithstanding the verdict or for a new trial, it appealed.
    Affirmed.
    
      Thomas S. Wood, for appellant.
    
      J. A. P. Neal and Thomas J. Navis, for respondent.
    
      
      Reported in 130 N. W. 1026.
    
   Simpson, J.

This is an action brought by the plaintiff to recover damages for personal injuries. A fall upon the street in the city of Duluth resulted in a simple fracture in the plaintiff’s leg near the hip joint. The claim of the plaintiff, to sustain which evidence was offered upon the trial, was that his fall was caused by the negligent starting of one of the defendant’s cars, on which he was a passenger, while he was in the act of alighting therefrom. Upon the trial, the defendant submitted evidence tending to show that the plaintiff fell after he had alighted from the car, and that his fall was not caused by any movement of the car. This question, upon which the evidence was conflicting, was fairly submitted to the jury, and its determination in favor of the plaintiff is sustained by the evidence.

The jury returned a verdict in favor of the plaintiff for $3,355. The trial judge determined that such verdict is not excessive. A consideration of the evidence showing the extent of the injury, the attendant pain and suffering, the resulting incapacity, and the expense necessarily caused thereby, leads us to the conclusion that the verdict is not excessive.

Dpon the affidavits submitted, the defendant was not -entitled to a new trial on the ground of accident or surprise or newly discovered evidence.

No other questions are raised by defendant’s assignment of errors. The order made denying defendant’s'motion for a new trial is affirmed.

Affirmed.  