
    John Schmidt, Appellant, v. Leonhardt Michel Brewing Company, Respondent.
    Second Department,
    November 13, 1914.
    Negligence — damages for personal injuries — evidence.
    Action under the provisions of the Labor Law to recover for personal injuries alleged to have been sustained through the negligence of the defendant. Evidence examined, and held, that an order vacating and setting aside a verdict, unless the same be reduced, should be reversed and the original verdict reinstated.
    Burr and Thomas, JJ., dissented.
    Appeal by the plaintiff, John Schmidt, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 15th day of April, 1914.
    
      Wilson E. Tipple, for the appellant.
    
      James B. Henney, for the respondent.
   Rich, J.:

The plaintiff appeals from an order vacating and setting aside a verdict of $2,000, rendered in his favor, and granting the defendant a new trial, unless he stipulated to reduce such verdict to $1,150, in which event defendant’s motion was denied. The action is brought under the provisions of the Labor Law to recover for personal injuries alleged to have been sustained through the negligence of the defendant. (See Consol. Laws, chap. 31 [Laws of 1909, chap. 36], art. 14, as amd. by Laws of 1910, chap. 352.) It seems that the learned trial court directed the verdict upon the assumption that the plaintiff had only expended $150 for medical services; that he had been paid during his disability the same compensation that had been theretofore paid him for his services, and that under such circumstances $1,000, in addition to the amount of the disbursement for medical attendance, was an adequate and fair compensation for the injury he had sustained. I think that this view entirely ignores the uncontradicted testimony that plaintiff was incapacitated for twenty-five weeks, and that, although he was paid during that time his regular weekly compensation of $26, he was compelled during all of that time to hire help to keep up his route, and expended in consequence more for such services than he received from the defendant, and that since he returned to work his physical condition, caused by his injury, has necessitated his employing an assistant at a weekly compensation of $8 to do the same work that he had performed before the accident. The evidence establishes, without contradiction, a loss to the plaintiff resulting from his injury of at least $26 a week for twenty-five weeks — a total of $650, which, added to the $150 paid for medical services, leaves only $350 as compensation for the pain and suffering he has concededly endured, and for his present defective and impaired physical condition, which is inadequate for the injury he sustained. Although the trial court seems to have had some doubt as to whether the verdict was not against the weight of the evidence, it permitted it to stand if reduced to $1,150. A careful consideration of the evidence satisfies me that it sustains the conclusion reached by the jury.

The order must be reversed and the verdict of the jury in favor of the plaintiff for $2,000 reinstated, with costs.

Jenks, P. J., and Stapleton, J., concurred; Buee and Thomas, JJ., voted to affirm.

Order reversed and verdict of the jury reinstated, with costs.  