
    Harry Levin, Appellant, v. The Nassau Electric Railroad Company, Respondent.
    Second Department,
    May 6, 1910.
    Railroad — negligence — damages not excessive.
    Action to recover for injuries received during a collision Between the defendant’s trolley car and a wagon in which the plaintiff was riding. Evidence examined, and held, that a verdict of §300 was not excessive.
    Burr, J., dissented on the ground that a nonsuit should have Been granted.
    Appeal by the plaintiff, Harry Levin, from an order of the Municipal Court of the city' of New York, borough of Brooklyn, made' on the 29th day of October, 1909, setting aside a verdict in his favor as excessive.
    
      Bernard Gordon, for the appellant.
    
      J. W. Carpenter, for the respondent.
   Rich, J.:

The plaintiff brought this action in the Municipal Court to recover damages alleged to have been sustained by him through the negligence of defendant’s servants in the operation of one of its trolley cars, which collided with a wagon, owned by him and in which he was riding, at a street crossing. The evidence upon which the contentions of the parties rest was conflicting. The questions of fact were submitted to the jury in a charge free from, error,'to which only one exception was taken,, and that is without merit. The plaintiff had a. verdict for $300. On a motion subsequently made by defendant the verdict was set aside upon the sole ground that in the opinion of the court it was excessive.

The only question before us is whether the trial court was justified in his belief that the verdict was excessive. The physician who attended the plaintiff testified that the latter sustained a severe strain of the spine; a contusion over the spine and one on the back of the head, with swelling and concussion of the brain ; that- the swelling was as large as his fist; that the top of the spine was bruised and. discolored ; that there wás a cut on one ear and bruises on the thighs and knees. The bruise on the right hip was six or seven inches long and discolored ; the knee was contused, discolored and swollen ; ■ there .was a contusion over the ribs. He complained of and suffered great pain. The physician treated him for five weeks, making fifteen calls at the house, and the plaintiff called at the office for treatment from ten to fifteen times. The physician testified that - his services were worth $50 ;■ that when he ceased treating plaintiff the pain in the back and spine had not abated, and the plaintiff testified that at the time of the trial — seven month's after the accident — he suffered pain in his back;' that for five weeks he was laid up and unable to work, and that for seven weeks he suffered intense pain in his back, head, shoulder and side. The' verdict for $300 is not excessive^ and there being nothing in the record'to indicate that the jury acted from improper mptives, from a mistaken view of the facts or in disregard of the law of the case, it must be. reinstated.

The order should be reversed and the verdict of the jury reinstated, with costs. ■

Hiesohberg, R. J., Thomas and Carr, JJ., concurredBurr, J.,

dissented upon the ground that the plaintiff should have been nonsuited. .

Order of the Municipal Court reversed and verdict reinstated, with costs. •  