
    Oscar G. Guyon, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    (Supreme Court, Appellate Term,
    February, 1906.)
    Damages — Evidence as to damages — Evidence in action for personal injuries: Instructions — As to damages.
    Where, in an action for personal injuries received by plaintiff while attempting to board a railway car, the only evidence as to his earnings at the time of the accident is his own testimony, which on his cross-examination tended to show that he was not earning so great a sum as he testified to on his direct examination, the question should be determined by the jury; and it is error to charge that, if they found for plaintiff, they must award him for “ loss of time ” the amount stated by him on his direct examination.
    The opinion of a physician as to the reasonable value of his services rendered to plaintiff is merely advisory and its weight is for the determination of the jury; and a charge which, in effect, instructs them that they must be governed thereby is clearly erroneous.
    Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, second district, borough of The Bronx, in favor of the plaintiff, upon a trial had before the court and a jury; and also from an order denying the defendant’s motion for a new trial, made on the ground of fraud and newly discovered evidence.
    George H. Yeaman (H. F. Ives of counsel), for appellant.
    House, Grossman & Yorhaus (James F. O’Heill of counsel), for respondent
   Giegerich, J.

This action was brought to recover damages for personal injuries, claimed to have been received by the plaintiff at the comer of Patchen avenue and Halsey street, borough of Brooklyn, on the 3d day of June, 1905, while in the act of boarding one of defendant’s cars, after it had stopped.

A verdict in favor of the plaintiff for $500 was rendered by the jury; and the defendant, in bringing on this appeal, states in the brief that the only questions raised are those presented by the exceptions taken to the justice’s charge.

Among the exceptions so noted, is one to an instruction substantially to the effect that, if the jury found that the accident happened, they must, at all events, bring in a verdict for the plaintiff for $360, for loss of earnings and $50 for his physician’s services.

The plaintiff’s counsel seeks to uphold such an instruction on the ground that there is no contradiction of the plaintiff’s testimony; that, for a number of weeks just previous to the accident, his earnings as a tinsmith had averaged eighteen dollars per week; that he had been disabled from work-for a period of twenty weeks, and that there is no contradiction of the physician’s testimony that his services were reasonably worth.fifty dollars.

While it is true that the defendant did not call any witness to contradict the testimony of the plaintiff upon the point referred to, the record, nevertheless, discloses that the testimony of the plaintiff, upon cross-examination, tended to show that he was not earning so great a sum as the one testified to by him on his direct examination and which was relied upon by the justice in giving the instruction complained of.

The rule applicable to the credibility of a witness who is a party to the action was clearly laid down in the recent case of Hull v. Littauer, 162 N. Y. 569, where the court, at page 572, said: “Generally, the credibility of a witness, who is a party to the action, and, therefore, interested in. its result, is for the jury; but this rule, being founded in reason, is not an absolute and inflexible one. If the evidence is possible of contradiction in the circumstances; if its truthfulness, or accuracy, is open to a reasonable doubt upon the facts of the case, and the interest of the witness furnishes a proper ground for hesitating to accept his statements, it is a necessary and just rule that the jury should pass upon it. Where, however, the evidence of a party to the action is not contradicted by direct evidence, nor by any legitimate inferences from the evidence, and it is not opposed to the probabilities; nor, in its nature, surprising, or suspicious, there is no reason for denying its conclusiveness.”

Applying the foregoing rule to the testimony of the plaintiff, it is very evident that the justice erred in the above instructions to the jury that, if they found for the plaintiff, they must award him the sum above mentioned for “ loss of time”. Instead of leaving the credibility of the plaintiff to be determined by the jury, the justice, by so charging the jury, virtually instructed them as to the force and effect of the plaintiff’s testimony, which he had no right to do.

The charge of the justice relative to the value of physician’s services was, in effect, an instruction to the jury that they must be governed by his opinion as to the value of such services. This was clearly erroneous, as the opinion of an expert as to the value of services is not conclusive; such testimony being merely advisory and the weight of it being for the determination of the jury. Head v. Hargrave, 105 U. S. 45; Lawlor v. French, 14 Misc. Rep. 497; Hull v. City of St. Louis, 138 Mo. 618, 42 L. R. A. 753.

Since a new trial should be granted for the errors above mentioned, it will not be necessary, to pass upon the motion made by the defendant for a new trial on the ground of fraud and newly discovered evidence.

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

Scott and Greehbaum, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  