
    Anna D. Fawdrey, Appellant, v. The Brooklyn Heights Railroad Company, Respondent.
    
      Effect of a stipulation that an accident was the “sole cause of the injury” —review of an order setting aside a verdict as excessive.
    
    A stipulation made on the trial of an action to recover damages for personal injuries, sustained by the plaintiff while riding in one of the defendant’s street cars, to the effect that the accident was the “sole cause of the injury,” does not preclude the defendant from showing that the plaintiff’s condition at the time of the trial did not result wholly from the accident hut partly from her premature confinement.
    The Appellate Division will give as much weight to an order made by a judge who presided at the trial of a negligence action, setting aside the verdict on the ground that it is excessive, as if the order was made on the ground that the verdict was against the weight of evidence.
    Appeal by the plaintiff, Anna D. Fawdrey, 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 loth day of March, 1901, setting aside the, verdict of a jury rendered in favor of the plaintiff and granting a new trial, on the ground that the amount awarded by the verdict was excessive.
    
      Stephen C. Baldwin [Henry Wilson Bridges with him on the brief], for the appellant.
    
      John L. Wells, for the respondent.
   Goodrich, P. J.:

The plaintiff was injured in a collision between two cars of the defendant, and at the trial the latter did not contest its liability to pay for whatever damages were actually occasioned to the plaintiff by the accident. It did then, and does now, deny that the plaintiff’s condition as it was at the time of the trial resulted from the accident, contending that it was partially at least the result of confinement. The jury rendered a verdict for $28,500. The defendant moved to set it aside as excessive and against the weight of evidence. The motion was granted and an opinion rendered by Mr. Justice Mattice which is hereto appended.

We are called upon to decide whether the order was a fair exercise of discretion, and having had occasion lately to consider the question in Lyons v. Connor (53 App. Div. 475), Mr. Justice Jenks writing, find it unnecessary to review authorities further than to cite our approval in that case of the remark of Mr. Justice Freedman in Bannon v. McGrane (45 N. Y. Super. Ct. 517): “It is at all times a grave question for an appellate court to reverse, on the ground of error, an order made by the trial judge setting aside the verdict-as against the weight of evidence.”

The plaintiff’s counsel, however, contends that this principle does not apply to the case at bar because, as stated in his brief, “ there is no question of weight of evidence; both the order and the opinion mention explicitly that the verdict is set aside solely on the ground of excessive damages, and this must necessarily be so, as weight of evidence cannot be involved in this case under the stipulation.” The stipulation referred to was made at the opening of the trial in the following language: “ Mr. Yonge: Before we proceed further . with the case, so that the issues may be narrowed and limited to just what there is in the case, the defendant desires to concede certain facts. The defendant concedes that the plaintiff was, on the 1st day of August, 1899, at about five to five-thirty in the afternoon, a passenger on one of the cars operated by the Brooklyn Heights Railroad Company along the line known as the Culver Road, and that the car in question came to a stop near the Parkville station,'at a point about one hundred feet'from the Manhattan crossing, where the tracks .of the Long Island Railroad Company cross the tracks of the defendant, in order to await the passage of one of the trains of said Long Island Railroad Co. which was there, and was about to cross the tracksiof said defendant at said crossing; and that while the car in which the plaintiff was a passenger was standing and waiting the passing of the train on the tracks of the said Long Island Railroad, that said car was run into by another car operated by the defendant upon the same track, and going in the same direction. Mr. Baldwin: Do you admit that the collision was caused through the negligence of one of the servants of your road? Mr. Yonge: I do not admit anything beyond what I have. Mr. Baldwin : Then we will prove the whole case. Mr. Yonge: Put it in this way. I do not .want to put on you any unnecessary burden or to consume the time of the Court unnecessarily, I take it that from the admissions I have made that the inference of negligence necessarily follows. The Court: You do not contest the question of negligence? Mr. Yonge: No. The Court: Nor the contributory negligence? Mr. Yonge: No, we d'o not. We concede this, that the motorman of the car that ran into the car in which the plaintiff was, was negligent in so doing. The Court: That it was the sole cause of the injury; and the only question here is the extent of the injury and the amount of damages ? Mr: Y onge: If any, sir.”

There was consequently but one question for the jury, viz., the extent of the plaintiff’s injury resulting from the -collision, but manifestly when the defendant conceded that the collision was the “ sole cause of the injury” it was not precluded from proving that the plaintiff’s condition did not result from the accident. The stipulation was evidently given for the purpose of saving time, and we cannot give any such limited or technical construction to the word “ injury ” as would preclude the defendant from showing that the plaintiff’s condition was not the result of the collision. Indeed, the plaintiff’s counsel frankly conceded in the argument, in answer to a question from the bench, that the "defendant would have been permitted to give evidence to show, if it could, that the plaintiff was malingering, and that admission seems to concede the correctness of the defendant’s contention that the word “ injury ” refers to the injury actually received from the accident. The result of the stipulation as to negligence was to leave for trial only the question as to the amount of damages.

The plaintiff, who at the time of the accident was within a month "of her confinement, testified as follows: At the time of the collision I was sitting rather forward in the seat, towards the front edge of the seat, with my hands in my lap. When the shock of the .collision came it threw me back against the seat I was sitting on, and then again forward against the seat in front of me. When it threw me I struck the back of the seat. The part of my back which sustained the blow was between the shoulders and lower part of my back, below the shoulder blade. When I was thrown forward I struck directly across my abdomen. I struck my stomach right against the seat in front of me. I did not fall down on the floor. It settled me back after I struck against the seat in front; then I settled back onto the seat.”

The evidence of the plaintiff’s witnesses leaves no doubt that jjremature confinement occurred the day after the accident and resulted from it. Nor is there any question that the plaintiff at the time of the trial was suffering from paralysis of the right side and from incontinence of urine and faeces. The extent of this condition was questioned, and its consequence upon the accident was denied by the defendant. Several physicians and professional nurses were examined as to the plaintiff’s condition, and while the evidence, especially that of the experts, was not in any sense a demonstration that the plaintiff’s present condition is permanent or that it is the necessary and natural result of the blows and shock which she received, it was sufficient within' the rule to require the submission of the question to' the jury; but it by no means follows that the court was compelled to deny a motion to set aside the verdict as against the weight of evidence or for excess in its amount. Something of the reason therefor is involved in the recent decisions of the Court of Appeals in Fealey v. Bull (163 N. Y. 397) and McDonald v. Metropolitan St. Ry. Co. (167 id. 66).

On the day of the trial the plaintiff was examined by Dr. Pray, a female physician selected by the court. Her testimony does not fully corroborate that of the physicians called by the plaintiff, so far as the extent of the injuries is concerned, and the trial justice was unquestionably influenced by her report in his conclusion to set aside the verdict.

I am unable to discover any difference in the application of the rule, as to the regard which is to be given to the discretion of the trial justice in setting aside a verdict, between evidence upon an issue of negligence and an issue as to the amount of damages. In either case the appearance of witnesses and their manner of giving evidence are calculated to and do impress both court and jury) It would be a strange distinction to say that court and jury, might regard those matters in deciding the one question and not the other. I know of no such rule, and have been unable to find any case in .which the distinction is recognized. Certainly it is illogical and dangerous.

Under these circumstances and after a careful examination of the evidence I have no hesitation in saying that the order of the trial justice should be affirmed, with a modification requiring the defendant to pay the costs of the trial and all disbursements in the action to date, together with the costs of this appeal.

Sewell, J., concurred; Woodward, Hirschberg and Jenks, JJ., concurred in result.

. Order modified by inserting a provision requiring the defendant to pay the costs of the trial and all disbursements in the action to date, together with' the costs of this appeal, all to be paid within twenty days from the entry of this order, otherwise order reversed and judgment directed on the verdict, with costs, and costs of this appeal. 
      
       Opinion of Mattice, J., delivered at Special Term.
      Mattice, J.:
      I am forced to the conclusion that the verdict should be set aside as excessive. The amount awarded is extravagant in the extreme and not within the bounds of reason and justice.
      The amount of this verdict and the income to be derived therefrom will be so-great that the wife can relieve the husband from the burden of supporting the family while she lives, and enable her at death to transmit a fortune to her children.
      I would reduce the verdict to a reasonable amount and give the plaintiff an opportunity to consent to such reduction, but I am satisfied that the ends of justice require a new trial. To my mind it is highly improbable that the plaintiff was injured by reason of the collision. The impact of the cars was very slight. The cars were not injured and none of the occupants of the car, except the plaintiff, claim to have been injured in the slightest degree or scarcely inconvenienced.
      The only disinterested witness upon the car testified that the impact was very slight and barely disturbed her position on the seat in front of the plaintiff.
      The plaintiff claims to have been sitting well to the front, of the seat, and was-thrown backward against the back of the seat. There were no visible marks of-violence on her back, and the physician who attended her shortly afterward, during the birth of her child, discovered nothing about her condition or appearance to-indicate any injury to the spine
      The rendition of such a large verdict in all the circumstances of this case induces me to believe that the jury were influenced largely by sympathy, and did not fairly weigh and consider all the evidence. In view of this large verdict the judgment of the jury upon the important question whether the accident was the natural and proximate cause of the injury is of little value.
      Verdict set aside and new trial granted, upon the ground that the verdict is for excessive damages.
     