
    EDWARD LOUGH, Plaintiff and Respondent, v. BENJAMIN F. ROMAINE et al., Defendants and Appellants.
    Before Monell, Curtis, and Sedgwick, JJ.
    
      Decided November 29, 1873.
    I. NEW TRIAL.—MOTION FOR.
    1. Fob what granted.
    
      a. For insufficiency of verdict for plaintiff in an action ex-ddictu. Instance.-—When the plaintiff, from the effect of injuries, was confined to his bed and lying on a sofa,, for eight weeks, and confined to the house three months (his ankle j oint being badly dislocated, and . the smaller bones of the leg badly fractured), suffering great pain, and attended by a physician who testified that the amount of his bill was $500, which had not been paid, and before the injury the plaintiff was earning $4.50 a day and was pretty constantly at work, and since the injury he had not been able to work as well as usual, a verdict for plaintiff of $135 is insufficient.
    3. Costs.—Payment op, when not imposed as a Condition. a. Where the verdict of the jury is against the judge's chan'ge.
    
    1. What is against the change.
    
    1. When, in the above instance, the judge, after charging the jury that if they found that the plaintiff received the injury through the negligence of the defendant, and was not himself guilty of any negligence contributing to the injury, then they would have to ascertain the amount of damages he had sustained, charged:— “ The doctor has stated that his bill of services was $500. The “ character of the injury has been stated to you, and it is for “you to say how much he is entitled to receive.”
    A verdict for $135
    WAS HELD
    to be against the charge.
    Appeal from order granting new trial on motion of plaintiff.
    This action was brought to recover damages for injuries sustained by plaintiff by reason of the falling on him of a pile of staves. Evidence was given on both sides as to the cause of the falling, the manner of piling the staves, the custom as to piling and taking down the piles, and as to the acts of the plaintiff on the occasion of his receiving his injury.
    Plaintiff testified among other things in substance that before the inj ury he had been earning $4.50 a day and was pretty constantly at work ; that by reason of the injury he was confined to his bed and sofa for eight weeks and to the house about three months, and was attended by a physician; and that since the injury he had been unable to work as well as usual.
    The doctor who attended the plaintiff testified that plaintiff’s ankle joint was badly dislocated and the small bones of the leg badly fractured, and that the amount of his bill for attending on plaintiff was $500, which had not been paid.
    The case was submitted to the jury under the following charge.
    “ Gentlemen, this a very simple case. The first “question for you to pass upon is whether the defendants in this action have committed negligence. If “they have not, then you can stop there, and find a “verdict for the defendants. If, however, you find that “the defendants have committed negligence in throwing “ down this pile, it will be then necessary for you to consider whether the plaintiff contributed to the injury “by running across the pile at the time it was falling. “If you find that he is guilty of negligence contributing to the injury, you will still render a verdict for ‘' the defendants. If, however, you find for the plain“tiff on both these questions, then you will have to “ ascertain the amount of damages he has sustained.
    “You have heard the testimony, and it is for you to “ say whether the plaintiff is to be believed, or whether “the witnesses produced on the part of the defendants “are to be believed, who testified that the pile was “thrown down in the ordinary way, and that notice “was given to the plaintiff. Numerous witnesses have “been produced on the part of the defendants : first, “the foreman, who is clear and distinct in his state- “ ment that he told the plaintiff he was about to toss the “ pile of staves, and desired him to go away; the other “witnesses corroborate the foreman in respect to the “ warning. It is for you to say on all the testimony, “first, whether there was any negligence on the part of “the defendants; if so, whether there was any negli-'‘ gence on the part of the plaintiff contributing to the “injury ; and if you find that the defendants were “guilty of negligence, and that there was no negli- “ gence on the part of the plaintiff, then you will ascertain what damages should be awarded to him.
    “The doctor has stated that his bill for services was “$500. The character of the injury has been stated to ‘ ‘ you, and it is for you to say how much he is entitled “ to receive. ”
    The jury rendered a verdict for plaintiff, and assessed the damages at $125.
    The plaintiff moved at Special Term on a case, and exceptions for a new trial on thé ground among others of the insufficiency of damages.
    The motion was granted, and this appeal is by the defendant from the order granting the motion.
    Ho judgment has been entered.
    
      Glassey, Thomas, and Davenport, attorneys, and Samuel J. Glassey, of counsel for appellants, urged:
    I. In actions for damages, courts will not disturb a verdict merely because the amount is greater or less than they might deem the proper amount (Winchell v. Latham, 6 Cow. 682 ; Fleming v. Hallenbeck, 7 Barb. 271, etc.).
    
      a. There was no proof of any specific damage sustained by the plaintiff. The doctor states what he charged for his services, but there is no evidence of how many visits he made or what was their value. There was a total failure of proof on this subject. •
    
      b. Plaintiff had to take a corporation job by reason of the accident, but whether at an increase or diminution of wages he does not say.
    II. In actions founded on tort, courts do hot grant new trials merely because the verdict is against the weight of evidence, unless some rule of law has been violated (Jarvis v. Hathaway, 3 John. 180; Murphy v. People, 2 Cow. 815; Wheeler v. Calkins, 17 How. 451, and cases therein quoted).
    
      a. The justice at Special Term has assumed in this case that the amount of the verdict was grossly inadequate and contrary to the evidence, and grants a new trial; and cites 40 New York, 551, and 7 Bosw. 1; which cases do not sustain the decision below. Nor does the case of Richards r. Sandford (2 E. D. Smith, 349), which was a case of injury to plaintiff, and the jury assessed the damages at $10, for loss of a tooth, injury to the face, etc.
    The court granted a new trial upon condition that all costs are paid, but denied the motion itself if defendant would stipulate to increase the amount to $100.
    III. If this had been a proper case to order a new trial, it must be on condition that the moving party pay all the costs incurred.
    
      No part of the judge's charge was disregarded by the jury. He could not and did not tell them the amount they should find. If he had, it would .have been error on his part:
    Where plaintiff or defendant ask for a new trial, because the jury’s verdict is against evidence, it must be on payment of costs (Bank of Utica v. Ives, 17 Wendell, 501; Conrad v. Williams, 6 Hill. 444 ; Kennedy v. Harlem R. R., 3 Duer, 659 ; Simmons v. Fay, 1 E. D. Smith, 114; Brock v. Barnes, 40 Barb. 521; Overing r. Russell, 28 Howard, 151; Jackson v. Thurston, 3 Cow. 342; Goodyear v. Ogden, 4 Hill, 106; Brown v. Bradshaw, 1 Duer, 199 ; Ward v. Woodburn, 27 Barb. 346.
    
      a. The case of Robbins v. Hudson R. R. R. (7 Bosw. 1), quoted by Justice Freedman, is not in point. There the jury rode over the justice’s charge, and, in defiance of his instructions, refused to assess the damages, and the case is clearly distinguishable from the present one. So, too, the question as to whether the costs should abide the "event of the final decision, or be paid as a condition of granting a new trial, was not raised by either side.
    
      Thomas Bgan, attorney, and Christopher Fine, of counsel for respondent, urged
    First.—The new trial was properly ordered (McDonald v. Walter, 40 N. Y. 551, 552, 554; Richard v. Santford, 2 E. D. Smith, 349).
    Second.—The costs should and were properly made to abide the event (Rollins v. Harlem R. R. Co., 7 Bosw. 15).
    In a case where the verdict is contrary to the law and to the charge of the judge, the costs will be directed to abide the event (Van Rensellear v. Dale, 1 John. Cases, 279; Knapp v. Curtis, 9 Wend. 60; Gra. Prac. 635 [2d. ed.]; Jacobson v. Belmont, 7 Bosw. 14, 18 ; La Farge v. Kneeland, 7 Cowen, 456, 461, and cases above cited).
   By the Court.—Sedgwick, J.

In this case, there was a verdict for plaintiff for $125. The evidence in the case makes it manifest that if he was entitled to a verdict at all, he was actually damaged in a much greater sum. On his motion a new trial was granted on the ground that the verdict was against the evidence and contrary to the charge of the judge.

The first objection taken on this appeal is that the case shows that the plaintiff was not entitled to any verdiet at all. This is not well founded, if we could consider such an objection. There was evidence that the defendant was negligent, and also that the plaintiff was not guilty of negligence.

The other objection is that the new trial should have been granted upon the defendants paying costs. This is not so, if the verdict was against the judge’s charge. For then the plaintiff was not in fault in not seeing that the jury was properly instructed (Robbins v. Hudson R. R. R. Co., 7 Bosw. 1). In this case, the jury, instead of looking to the evidence, as they were instructed to do by the court, to ascertain the damages, disregarded that instruction, and gave a .verdict at variance with the evidence.

The order appealed from is affirmed, with costs.

Monell and Curtis, JJ., concurred.  