
    Rudolph de Wardener, Respondent, v. The Metropolitan Street Railway Company, Appellant.
    
      Negligence—what verdict is excessive.
    
    In an action brought to recover damages for personal injuries caused, as alleged, by the negligence of the defendant, it appeared that the plaintiff’s left arm had been badly injured; that its usefulness was permanently impaired; that a difficult surgical operation had taken place and plaintiff had suffered seriously; that his nerves had become affected, his powers of application decreased and that he could only walk a short distance without fatigue. Mo loss of earnings was shown and there was no proof that the mental and nervous conditions were or would become permanent, and the only permanent injury shown was to the arm. The plaintiff had paid §8,497.85 for medical and surgical attendance.
    
      Held, that a verdict for §25,000 was excessive, and that the recovery should be reduced to §15,000 and his medical and surgical expenses.
    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 Kings on the 10tli day of June, 1895, upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 12th day of June, 1895, denying the defendant’s motion for a new trial made upon the minutes.
    This action was brought to recover damages resulting from personal injuries alleged to have been occasioned to the plaintiff by the negligence of the defendant. The jury rendered a verdict in favor of the plaintiff for §25,000.
    
      Thomas S. Moore, for the appellant.
    
      George Zabriskie, for the respondent.
   Willard Bartlett, J.:

The only question which this court is called upon to decide, on the present appeal, is whether or not the damages awarded to the plaintiff by the jury were excessive. The judgment was not assailed on any other ground in the oral argument, nor is any other reason for reversal suggested in the brief of the counsel for the appellant.

I think the amount of the verdict plainly exceeds any sum which could fairly be regarded as compensation for the injuries which the plaintiff sustained. His left arm was badly injured and its usefulness to a great extent permanently impaired. A difficult surgical operation became necessary, and the plaintiff, in the course of liis illness, was compelled to undergo much suffering. For .all this he was entitled to be compensated, and the fact that the jury has given even very liberal compensation in such a case does not warrant the court in setting aside the verdict. For his expenditures on account of surgical and medical treatment, amounting to §3,497.85, the plaintiff was also entitled to be repaid.

According to the plaintiff’s testimony he was able to walk ten or twelve miles of a morning prior to the accident, but since he was hurt, a walk of two or three miles made him very tired; before the accident he was a great reader, but at the time of the trial he could not read three pages, because he got tired and did not know what he was reading; he was very good natured formerly, but now he had become very irritable and small matters irritated him very much.

While these matters were entirely proper for the jury to take into consideration in assessing the damages, it is to be noted that there is no evidence whatever as to the probable duration of the nervous and mental conditions thus described by the plaintiff, assuming that they were the result of the injury, caused by the negligence of the defendant. The amount of the verdict indicates that the jury acted on the assumption that such conditions were permanent or would be permanent, although there was no proof of that fact.

No loss of earnings was shown, and the only permanent injury established by the proof was that to the arm already mentioned.

Under these circumstances it seems to me impossible to resist the conclusion that the jury, in assessing the damages at $25,000, must have been actuated, to a very considerable degree, either by sympathy for the plaintiff or by a desire to punish the defendant. If they were induced, by either feeling, to add anything to the amount of their verdict, it would be, to that extent, excessive. It is not only the power, but the duty of this court, to set aside a verdict, in an •action to recover damages for personal injuries, where the sum ■awarded by the jury has been enlarged beyond the measure of compensation as the result of sympathy and prejudice. (Houghkirk v. Pres., etc., D. & H. Co., 92 N. Y. 219.)

After a very careful consideration of all the evidence in this case ■relating to the injuries sustained by the plaintiff I am satisfied that .a verdict which awarded him $15,000 in addition to the expenses which he incurred for surgical and medical treatment, would have gone to the verge of permissible liberality in the assessment of ■damages in such an.action as this.

I think the judgment should be reversed and a new trial granted, unless the plaintiff stipulates to reduce the verdict to $18,497.85.

All concurred.

Judgment reversed- and new trial granted, with costs to abide the ■event, unless plaintiff stipulates, within twenty days, to reduce the verdict to $18,497.85. If such stipulation is filed, the judgment, ■so modified, is affirmed, without costs.  