
    Joseph Buttner, Appellant, v. The City of New York, Respondent.
    First Department,
    December 30, 1905.
    Negligence — charge erroneous mTimiting reeoveryto expenses paid.
    When the court, having correctly charged the jury as to the measure of damages in an action for personal injuries received through the negligence of the defendant, which injuries were shown to have been severe, in the last reference to the measure of plaintiff’s compensation — in commenting upon the amount which he had paid his doctor and other financial loss — says, “This perhaps represents in brief the measure-of the plaintiff’s recovery, if he is entitled to recover,” a verdict of §500, which did not exceed the expenses to the plaintiff caused by the accident, should be set aside and a new trial granted.
    Under such "charge, the jury may have thought that the plaintiff was entitled to nothing for his pain, suffering, etc.
    
      Appeal by the plaintiff, Joseph Bu-ttner, from an order of the Supreme Court, made at the Hew York Trial Term and .entered in the office 'of the clerk of the county of Hew York on the 8th day. of June, 1905.
    
      Edward J. McGanney, for the appellant.
    
      Theodore Connoly, for the respondent.
   Houghton, J.:

The jury by their verdict found that the plaintiff was "injured by reason of the negligence, of the defendant; and without any contributory negligence oh liis part, and Upon this appeal we must assume that those' facts existed.

The injuries were of a- serious character,, consisting of a scalp wound of considerable magnitude, which was slow in healing, and in which- complications arose, -and which'finally left a disfiguring scar. Plaintiff was confined to his -bed about two months, and Was unable to do any Work for a month following, meanwhile suffering much pain. ... ...

The. jury rendered a verdict in his favor pf $500, which he moved to.set aside as inadequate, and from the Older denying such motion he appeals. • ' -

notwithstanding the small -verdict, we should not be disposed to interfere with it except for the. fact that the jury may havé been misled by an inadvertent expression of the court, at the close pf his charge. The court had correctly charged the jury that the plaintiff was entitled, if they found that the defendant was negligent and the plaintiff free from contributory negligence, to a reasonable compensation for the injuries .sustained to.-his person and for his pain and suffering, as well as for-the necessary financial loss which he had sustained in- consequence, of his injury. In commenting,- however, upon the amount which he had paid his doctor and his other financial loss, the court said : Therefore, you have that evidence ■in tins casé as to the medical services, and yon are to say what they were reasonably worth. He (plaintiff) is entitled to what they'were reasonably worth, not to exceed the amount he paid. This perhaps represents in brief the measure of the plaintiff’s recovery,, if he is entitled to recover in this case.” This was the last reference of the court to the measure of plaintiff’s compensation.

The plaintiff had proved that the services of his physician were reasonably worth not less than $300, and that he had paid him thereon $200, and that he had paid out in employing men to do the work which he was incapacitated from doing while confined to his bed and house the sum of $195, besides their board. The jury thus had before them the fact that the plaintiff had been compelled to expend or incur liability for about the sum of $500, exclusive of any compensation for his own personal injury and suffering.

It is true there Was no exception to this portion of the charge. If the court’s attention had been called to the precise language which he had used, no doubt he would have explained or modified it.

We cánnot say, however, in the face of the verdict of the jury, so small in view of the plaintiff’s proof of his injuries, that they did not misapprehend the instructions of the court and confine their verdict to the simple financial loss which the plaintiff had suffered. - If the plaintiff was entitled to recover at all, of course he was entitled to recover a reasonable compensation for his pain and suffering and physical disfigurement, as well as for the financial loss which he had sustained by reason of the accident.

We-think justice will be best subserved, under the peculiar circumstances of this case, by the granting of a new trial in which all of the issues involved can be presented to another jury.

The order should be reversed and a new trial granted, with costs to the. appellant to abide the event.

O’Brien, P. J., Patterson, McLaughlin and Laughlin, JJ., concurred.

Order reversed and new trial granted, costs to appellant to abide event.  