
    Robert H. Furman, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    
      Negligence •—■'what is not an excessive verdict.
    
    A verdict for §9,000 against a railroad company, obtained in favor of a person aged fifty-six years, who, while employed as one of its conductors, was, as a result of its negligence, so injured in the right leg that he was thereafter unable to support his weight upon it, suffered .constant pain, and was practically deprived of the power to earn a living, which disability was likely to be permanent, is not excessive when it appears that, although in the capacity of conductor he only earned two dollars a day, he had accepted such employment only for the winter months, and that he had earned in each of the two years prior to the accident at least §1,200 as a dealer in vegetables.
    Appeal by the defendant, The Brooklyn Heights 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 Kings on the 26th day of February, 1897, upon the verdict of a jury for $9,000, and also from an order entered in said cleric’s office on the loth day of March, 1897, denying the' defendant’s motion for a new trial made upon the minutes.
    This action was brought to recover damages for personal injuries ' caused to the plaintiff by the collision of two cars of the defendant, on one of which the plaintiff was employed as conductor.
    
      Charles A, Collin, for the appellant.
    
      Charles J. Patterson, for the respondent.
   Willard Bartlett, J.:

The only ground upon which we are asked to reverse the judgment in this case is that the amount of the verdict ($9,000) is excessive. I ■ have carefully read all the evidence bearing upon the character and extent of the injuries suffered by the plaintiff. He is a man who was fifty-six years old in May, 1895," when the accident occurred. He had then been employed a little more than three months as a conductor in the service of the defendant corporation, from which he received two dollars a day. Prior to that time he- had been engaged in -the produce business at Washington Market, buying and selling vegetables on commission between June and November off and on for thirty years.” He thus earned $1,200 in 1894 and between $1,200 and $1,500 in the year previous. He resorted to other occupations in the winter, as he could not carry on his kind of marketing at that season. When he became a conductor for the defendant it was simply to fill up the winter months,” and not with any intention of going permanently into the railroad business..

The principal injury was the fracture of the plaintiff’s right leg, which was broken between the knee and the ankle in four places. There were three breaks fin the tibia or main bone of the leg, and there was one in the smaller bone. The plaintiff was confined to his bed three months, and he says it was five months before he could go anywhere. At the time of the trial he was able to get along with one crutch and a cane, but swore that he had pain all the time. In the union of the bone at the place of one fracture there •was a slight overlapping which has made the leg a little short. The plaintiff’s physician testified that the leg was weak, that the muscles ■ have atrophied, so that the man is apparently unable to put his heel . firmly upon the ground and support his weight upon the foot, and that he regarded this condition as a permanent one. The plaintiff himself testified that he had not been able to do any work at all since the collision in which his leg was crushed; and the proof on this branch of the case impresses me with the idea that the injuries sustained by the plaintiff have practically deprived him of the power to earn a living.

In view of what the evidence permitted the.jury to find as to his earning capacity before the accident, the permanent character of the injury and the pain which the plaintiff has suffered and seems likely to continue to suffér, I am not prepared to hold that the verdict was too large. The testimony of the plaintiff’s physician may be accepted without hesitation, as the defendant called no medical expert in opposition.

■ I think we should affirm the judgment.

. Judgment and order unanimously affirmed, with costs.  