
    Frances A. Smith, Respondent, v. Third Avenue Railroad Company, Appellant.
    
      Injury to tin person from negligence — a verdict for §10,000 deemed excessive.
    
    "Where, as the result of an accident caused by the defendant's negligence, the plaintiff, who was a school teacher fifty-four years of age, and received a salary „of §1,750 per annum, was confined to her bed for two weeks, suffered and was still suffering to some extent from congestion of the brain due to the accident, and was incapacitated for school work for four months, but, after that time, was able to resume her regular duties, although not to perform them with the same vigor, the court considered, in view of the fact that the pecuniary loss of salary was small, and that there was no evidence that the plaintiff had paid, or was liable to pay, for any medical services, that a verdict for §10,000 was excessive and that it should be reduced to §5,000.
    Appeal by tlie defendant, the Third Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 2d day of June, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Westchester, and also from an order entered in said clerk’s. office on the 12th day of June, 1896, denying the defendant’s motion for a new trial made upon the minutes.
    
      William N. Cohen and Edgar M. Johnson, for the appellant.
    
      John T. Little, Jr., Francis L. Wellman and Sumner B. Stiles, for tlie respondent.
   Brown, P. J.:

The plaintiff recovered a verdict of $10,000 for injuries sustained through the negligence of the defendant, while attemjiting to get upon one of the defendant’s cable cars on Third avenue, in the city of New York. As a result of the accident the plaintiff was thrown down upon the car platform and received a severe cut in her forehead and several bruises upon her body and limbs. The cut upon her head was sewed up, by a physician and healed in due course of time. The plaintiff was confined to her bed for two weeks when she got up and walked around. She testified that she was at that time unable to control her limbs, and that her head swam and that she had a great deal of pain there and in the back of her neck. Her physician testified that at the time of the trial she had not recovered from the symptoms that developed at the time of her injury; that her trouble was brain irritation; congestion of the brain; the base of the brain due to the shock and blow that she received; ” that when she made any mental effort the brain would become more congested and induce symptoms that rendered it impossible for her to use her brain, and that she would then have headache and nansea; that if she rested and remained quiet and had nothing to worry her, she was in fairly good condition, but that just as soon as she tried to work or use her brain she would get. dizzy and have a headache and be unable to walk any distance without getting dizzy.

The plaintiff was fifty-four years of age, a teacher in the public-schools of the city of New York, and had been such for nearly twenty-six years, and received for her services the sum of $1,750 per year, which was the maximum salary paid for such employment. She returned to her school about a month after the accident for a few days and then was obliged to give up work and remained away for four months. During that period she received pay for Saturdays and Sundays, days which it appears all teachers were paid for, according to the custom of the school department. Plaintiff testified to receiving over ninety-seven dollars in December, the month in which the accident occurred, as much as seventy-seven dollars in January, fifty-three dollars in February and forty-three dollars in March. About April first she resumed her school duties and was at work regularly after that until the time of the trial.

There was testimony as to the existence of pain and suffering, which would naturally follow such an accident as befell the plaintiff. As to the permanent effect upon her system as it was developed at the time of the trial, she testified as follows : The accident was December 7th. When I came back four months afterward I have not been able to do my work as I did it before. I cannot keep my mind on my work; my head gives out and my eyes. That I never had before. When I get home, after making an effort to go through the school work, I am very much exhausted. I go to bed every afternoon when I get home. I go home about four o’clock. I don’t go to sleep when I lie down. I am too nervous to sleep. I just lie and rest. I sleep very poorly nights. There are nights that I do not sleep at all. I am taking medicine from the doctor to make me sleep. I have been taking it ever since the accident, but not all the time, not every night. I have been crawling along with my school work the best 1 can, and going to bed as soon as I get home. This trouble with my head and eyes I think is getting worse. I had been teaching twenty-three years and some months. In December of this year I will have completed twenty-six years. I am not able to continue my school work. I never had this trouble before. At the time of this accidezit I was able to do zny wozzk vigorozzsly.”

The rule of damages applicable to the case permitted the jury to award to the plaintiff compensation for the pecuniary loss which she had sustained because of her injuzies and also fair azid adequate coznpensation for the pain and suffezing that she had undergone, and also for such as it was reasonably cez’taizz wozzld be the necessary result of the injury which she had szzstained. The pecuzziary loss of salary was small and there was no testinzony offered to show that the plaintiff had paid or was liable to pay for any medical or other services. The testimony of the plaintiff, that she was unable to continue her school work, as the result of the accident, and the testimony of the physician, that any mental effort would develop syzzzptoms that would render it impossible for her to use her brain, appear to be contradicted by the zzndispzzted fact that the plaintiff reszzmed her school dzzties in April, 1895, four months after the accident, and had continued them unizzteiTuptedly down to the time of the trial, which took place izz May, 1896, and the plaintiff was unable to show that daring that period she had been absezzt f rozn her school duties more days than she had been, duzing a eorrespondizzg peziod prior to the accidezit. Upon this point she was asked, upon cross-examination, whether from the time she returned to her woi-k in April to the time of the trial she had lost as many days as she had during the sazne number of mouths immediately before the accident, and her answer was: “I don’t know. It seems to zne it might be about what I have lost before; perhaps not as much.”

Upon the facts thus briefly referred to in relation to the pezmanent chaz'acter of the injuries, we are of the opinion that the verdict was. excessive and that it should be reduced to the sum of $5,000.

• The judgment should, therefore, he reversed and a new trial granted, with costs to abide the event, unless the plaintiff stipulates within twenty days to reduce the verdict to the sum of $5,000, with a corresponding reduction in the amount of the extra allowance granted at the trial, and if such stipulation is made the judgment so reduced will be unanimously affirmed, without costs of appeal.

All concurred.

Judgment and order reversed and new trial granted, costs to abide the event, unless the plaintiff stipulates within twenty days to reduce the verdict to $5,000, with a corresponding reduction of the extra allowance granted. If such stipulation is filed, the judgment so reduced is unanimously affirmed, without costs.  