
    Henry Weingarten, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Negligence — injury to one moping an iron beam in the street, after notifying a horse car driver to stop, but before seeing that he did stop — §3,000 verdict, when not excessive.
    
    In an action brought, to recover damages for personal injuries, it appeared that the plaintiff was in the employ of a contractor who was engaged in building a , house on a street in which the defendant maintained a single-track horse railroad; that on the day in question the plaintiff and other employees of the contractor started to take into the building a heavy iron beam which obstructed the passage of two of the defendant’s cars; that as the beam cleared the track the plaintiff’s foreman signalled one of the cars to go on. The plaintiff’s evidence tended to showi that, after the first car had passed, the plaintiff and his-fellow-workmen then concluded to slide the beam further from the tracks before allowing the second car to pass; that the car had already started and that the plaintiff signalled the driver, who was laughing and talking to some people standing on the front platform, to stop; that,-seeing the'driver, who was looking at him,- take hold of the brake handle as if to obey his signal, the plaintiff returned to his work, but that the driver, instead of stopping, attempted to pass rapidly, and that, in so doing, the car struck the beam and slewed it around, injuring the plaintiff.
    
      The evidence was conflicting as to the distance which the end of the beam was from the track. The plaintiff testified that it was about one inch, while the driver of the car testified that it was about ten inches. It further appeared that some of the defendant’s cars were one inch wider than others.
    
      Held, that a judgment entered upon a verdict in favor of the plaintiff should be-affirmed;
    That it could not be said as matter of law that the plaintiff was guilty of contributory negligence in not waiting to see that the car actually stopped before returning to his work;
    That a verdict for $3,000 was not excessive where it appeared that the plaintiff was a skilled workman who earned on an average twelve dollars per week; that he sustained a compound fracture of the leg, and was incapacitated for work for a period of fourteen months; that as a result of the fracture his right leg was one inch shorter than before and that he still experienced pain therein, and would continue to do so, and that, while at the time of the trial he was earning the same wages as before the accident he could not, on account of the shortening of his leg, do the work as conveniently as before, or do all the kinds of work that he could do before.
    Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of October, 1900, upon the verdict of a jury for $3,000, and also from an order entered in said clérk’s office on the 18th day of October, 1900, denying the defendant’s motion for a new trial made upon the minutes.
    
      Gharles F. Brown, for the appellant.
    
      John Yernou Bowvier, Jr., for the respondent.
   Laughlin, J.:

The action was brought to recover damages sustained by plaintiff through the alleged negligence of defendant. A contractor was erecting a new house on the north side of Twenty-eighth street, between Lexington and Third avenues, and plaintiff was employed on the job as an iron worker. Defendant operated a single-track, horse-car railroad through Twenty-eighth street.- Between the track and the northerly sidewalk building material occupied most of the carriageway in front'of the premises upon which the new. house was being constructed. A runway had been constructed of timbers, extending from the doorway of the house to the street upon which it was intended, by means of rollers and derricks, to run iron beams from the street into the building. On the 7th day of July, 1898, a twenty-four-inch iron beam, thirty-two feet long, with a seven-inch flange, and weighing from 3,000 to 3,500 pounds, had been left in the street to be transferred to the new building. It obstructed the passage of two ears. Plaintiff and other employees of the contractor started to remove the beam from the street along this runway. The flange rested on the rollers so that the upper edge of the beam was about three feet from the ground. As the outer end of the beam cleared the track plaintiff, on the suggestion of his foreman, signalled the first car to come on, and it passed slowly without contact. The evidence is conflicting ás to the distance between the end of the beam and the side of this car as it passed. Plaintiff says it was three-quarters of an inch or an inch, and the driver of the car says it was all of two feet. The passage of the first car had been delayed about four minutes and of the second car about two minutes. After the first car passed plaintiff suggested to his foreman that they had to get the beam in and could not let the other car pass, and the foreman assented and instructed plaintiff to stop it. The second car had started up and plaintiff raised his hand, looked over and said to the driver, who was laughing and talking to two or three fellows who were standing on the front platform, “ stop.” At the time plaintiff signalled the driver was looking at him and took hold of the brake handle, and plaintiff testified without objection that he thought he was going to stop. Meanwhile the foreman was readjusting the appliances in order to get a better purchase on the beam. Plaintiff, after seeing this movement on the part of the driver as if to obey his signal, turned to his work and put his hands on the beam. The driver, instead of stopping, attempted to pass rapidly, and in so doing the car struck the beam and slewed it around onto. plaintiff. The driver of the street car denies seeing plaintiff, or receiving any signal or warning to stop. He also testified that when he started to go by, the end of the beam was ten inches from the side of his car, and the conductor says that it was from twelve to fifteen inches therefrom.

The evidence presented on behalf of the plaintiff showed that the beam did not slip or move back and that the front end of the car collided with it, while that on the part of the defendant tended to show that the beam must have slipped and struck the car while it was passing, and that the car did not pass rapidly. There were fifteen cars on the line, five of which were one inch wider than the other ten. The case was submitted to the jury by a charge eminently fair to the defendant and to which no exception was taken.

If the end of the beam was only three-fourths of an inch, or an inch, from the first car, as testified by plaintiff, the striking of the beam by the second car could be accounted for by its being one of the wider cars or by the oscillation incident to the sudden starting and rapid movement of the car. The appellant contends that plaintiff was guilty of contributory negligence as matter of law. According to the testimony of the plaintiff, which was supported by other evidence, he was justified in believing that the driver of the car understood his signal and was proceeding to stop in accordance therewith. It cannot be said as matter of law that ordinary care and prudénce on his part required that he should further neglect his work and wait to see that the car actually stopped. We agree with the learned trial justice that this was a question of fact for the jury, and their verdict, supported as it is by competent evidence, is conclusive upon the question.

The only other point urged by the appellant is that the verdict is excessive. Plaintiff was a skilled workman and earned on an average twelve dollars per week. He was incapacitated from work by the injuries for a period of fourteen months. As a result of the fracture his right leg is one inch shorter than before. It was a cohn pound fracture and the bone was badly splintered. Plaintiff still experiences pain in the leg. with changes' in the weather, and the medical evidence is to the effect that this is a permanent condition. Although, fortunately, at the time of the trial he was earning the same wages as before the accident, the evidence shows that he cannot, on account of the shortening of the leg, do his work as conveniently as formerly, or do all kinds of work now that he could perform before. The verdict is not excessive and it should not be reduced.

The judgment and order appealed from should be affirmed, with costs.

Van Brunt, P. J., Patterson, McLaughlin and Hatch, JJ., concurred.

Judgment and order affirmed, with costs.  