
    David Saperstone, Appellant, v. Rochester Railway Company, Respondent.
    
      Negligence—new Mai granted because the verdict gave insufficient damages — when-only nominal damages are allowable for the plaintiff’s services.
    
    In an action brought to recover damages for injuries to the plaintiff’s person and to his horse and wagon, found by the jury to have been caused by the negligence of the defendant in a collision between one of its street cars and the plaintiff’s wagon, it appeared that the plaintiff was a cigar manufacturer; that the injuries confined him to his bed for six weeks and necessitated an expenditure of eighty-eight dollars for medical services; that one of the shafts • of his wagon was broken and that the wagon was otherwise injured.
    
      Held, that a verdict for fifty-five dollars should be set aside as inadequate and that a new trial should be granted, under section 999 of the Code of Civil Procedure, on the ground that the verdict gave insufficient damages.
    
      It seems, that where in such a case there is no evidence of the value of the plaintiff’s services only nominal damages can be allowed for the loss thereof.
    
      Appeal by the plaintiff, David Saperstone, from an order of the Supreme Court,, made at the Monroe Trial Term and entered in-the office of the clerk of the county of Monroe on the 2d day of April, 1897, denying the plaintiff’s motion for a new- trial made upon the minutes. '
    The action was brought to recover1 damages for injuries to the plaintiff’s person and horse and wagon, caused by the alleged negligence of the defendant. ■
    On the 17th of July, 1895, the plaintiff was'driving upon North street with a horse and wagon belonging to him, and while so driving it is alleged he was run into by one of the defendant’s -cars, which caused the plaintiff to be thrown from his wagon, and it is alleged that he sustained severe .and permanent bodily injuries, and that his wagon and harness were broken and greatly damaged. The complaint alleges that the plaintiff has been put to an expense of more than seventy dollars for medical and surgical attendance and services in consequence of said injuries ; that the wagon was damaged to the extent of thirty dollars, and the harness to the extent of five dollars, and that the plaintiff’s clothing was, torn and damaged to the extent of twenty-three dollars, and that he sustained damages to his person in the sum of two thousand five hundred dollars.
    In the bill of particulars served it was stated- that there was a fracture of the seventh and eighth ribs, and a strain of.the lumbar muscles, and bruises upon various parts of the plaintiff’s person. ■ The answer contained a general, denial. After the jury rendered a verdict for fifty-five dollars the plaintiff moved for a new trial on the minutes, which was denied, and from the order denying a motion for a new trial the 'plaintiff appeals.
    . Quincy Van Voorhis, for the appellant.
    
      Charles J. Bissell, for the respondent.
   Hardin, P. J.:

Section 999 of the Code of Civil Procedure authorizes the trial court to entertain a motion for a new trial on the minutes, among other grounds, for insufficient damages.

Immediately after the plaintiff received the injuries he called' Dr. Norton, who attended him as a physician and charged for his services thirteen dollars, which the evidence shows that the plaintiff has paid. Subsequently Dr. Soble attended the plaintiff, and the value of his services is shown to have been seventy-five dollars. Plaintiff was in bed six weeks. The evidence indicates that one of the shafts of the wagon was broken and that it was otherwise injured. When the plaintiff rested the defendant moved for a nonsuit, and the motion was denied. At the close of the evidence the defendant again made a motion upon the same grounds for a direction of a verdict in favor of the defendant, and “ upon the further ground that a verdict for the plaintiff would be against the weight of evidence.” The motion was denied. The trial court then submitted the case to the jury, instructing them that if they found the defendant was guilty of negligence and the plaintiff was free from contributory negligence, there might be a recovery. He also instructed them, viz.: “You will give him such damages as you think will fairly compensate him for his injuries. He has described his injuries, and his physician has testified to the condition he was in after the accident, and what his services were worth.”

The jury in finding a verdict for the plaintiff must have found that the defendant was guilty of negligence and that the plaintiff was free from negligence, and, therefore, that the plaintiff was entitled to recover such damages as he had sustained. The verdict imports a verity. Having reached the conclusion that the plaintiff was entitled to recover, the jury should have found a verdict sufficient to compensate him for the injuries which he sustained.

Plaintiff was a manufactura- of cigars. There was no evidence of the value of his. services, although there was evidence of the time lost by reason of the injuries. The jury had no right to measure damages for loss of time, in the absence of proof of the value of his services and his earning capacity.

In Leeds v. Metropolitan Gras-Light Company (90 N. Y. 29) it was said: “ In the present case the jury knew simply that time was lost by reason of incapacity to labor. They were bound to consider it of some value, but could not go beyond nominal damages, and give compensation for it upon an arbitrary standard of their own. * * * Among the elements of damage in cases of injury for negligence is the cost of the cure, the bills and expenses of medical attendance. Suppose that the bare fact was shown that the deceased had a doctor, but the length of his attendance was not given, the amount of his charges not shown, would it do to permit the jury to give compensation for the cost of the cure upon their own guess or. speculation as to its amount ? For pain and suffering, or injuries to the feelings, there can be no measure of compensation, save the arbitrary judgment of a jury. ' But that is a rule of necessity. Where actual pecuniary damages are ■ sought, some evidence must be given showing their existence and extent.”

In Gumb v. Twenty-third Street R. Co. (114 N. Y. 411) the plaintiff was permitted to show how much liis .physician charged without giving evidence of payment or any evidence of the value of the services. That was held to be error. We see nothing in that case inconsistent with the doctrine laid down in Leeds v. Metropolitan Gas-Light Co. (supra).

There was clear evidence that the services of Dr. Horton were worth thirteen dollars and that the plaintiff has paid that sum for his services. There was clear evidence that Dr. Soble had attended the plaintiff numerous times and that the value'of his services'was seventy-five dollars.

Upon the evidence before the jury the verdict of fifty-five dollars was insufficient, and it was the duty of the jury to fully compensate the plaintiff for the damages which he had sustained; not having done so,, their verdict ought to. be set aside. (Meyer v. Hart, 23 App. Div. 131.)

In McDonald v. Walter (40 N. Y. 551) a motion was made upon the minutes of the court and an order was granted setting aside the verdict on the ground of inadequacy of the verdict, and it was held that the court had jurisdiction and the right to make such order, “ although, upon the evidence, a verdict for the defendants would not have been disturbed.” ,

In Kelly v. City of Rochester (38 N. Y. St. Repr. 797) the General Term of the fifth department set aside a verdict which awarded fifteen dollars damages to the plaintiff, and it was held that the undisputed ■ evidence showed that the plaintiff fractured two ribs, suffered pain and was disabled for several months, and, therefore, the court properly set aside the verdict upon the ground that the damages were inadequate. In the course of the opinion it was said : “ The verdict of the jury found both the issues tried in favor of the plaintiff, and that finding entitled him to full compensation for the injury which he had sustained! For that purpose the verdict was grossly inadequate, and must have been the result of unworthy and improper considerations prevailing with the jury. The discretion of the trial court was correctly exercised in setting aside the verdict and granting a new trial to the plaintiff.”

In Brown v. Foster (1 App. Div. 578) the plaintiff was a trained nurse, and her leg was broken, and she was kept from her business many weeks, and she had incurred medical expenses in an amount of $108, for which sum the jury gave a verdict. It was held that the verdict was inadequate and that a new trial must be granted, and it was said: The statement of the facts condemns the verdict and justifies the order.”

In Cowles v. Watson (14 Hun, 41), in delivering the opinion, Daniels, J., said : Even a jury should not be permitted under the forms of law to do what is shown to be palpably unjust. And, from the conclusion reached by them upon the facts forming the-legal foundation of their verdict, that has been done in this case.”"

Upon the evidence given at the trial, it is very manifest in the' case in hand that the verdict is inadequate and that the damages are insufficient, and the motion for a new trial by reason thereof, made by the plaintiff, ought to have been granted.

Inasmuch' as the appellant on the argument acquiesced in the claim of the defendant that the verdict should be set aside only upon condition that the plaintiff be required to pay the costs of the former tidal, we conclude to so order.

All concurred.

Order reversed and verdict set aside and a new trial ordered on. condition that the plaintiff pay the costs of the. former trial, with costs of this appeal to. the appellant to abide the event.  