
    Mary Birmingham, by Guardian, Resp’t, v. The Rochester City & Brighton Railroad Co., App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 13, 1892.)
    
    1. Carriers—Liability for injury to passenger.
    Plaintiff, while a passenger on one of defendant’s cars, was injured by the fall of some iron from an iron trough used to balance a lift bridge-constructed and owned by the state and forming part of the highway traversed by defendant’s road. " The iron fell because of the imperfect welding of a stirrup of the trough, which defect could have been easily discovered by the manufacturer if tests had been made. It also appeared that defendant had never inspected the bridge. Held, that the court properly held that the only question for the jury was the question of damages.
    $. Same—Damages.
    In an action for such damages where it appears that the injury rendered. plaintiff senseless for twenty-four hours; that her sight was affected; that for twenty months she had suffered from dizziness and headache; that she was sleepless nights and her ability to study affected, and that the effects of the injury might continue for a considerable time, a verdict for $3,500 cannot be held excessive.
    Appeal from a judgment entered upon a verdict at the Monroe circuit in June, 1891, and from an order denying defendant’s motion for a new trial on the minutes of the court.
    
      Charles J. Bissell, for app’lt; J & Q. Van Voorhies, for resp’t.
   Lewis, J.

The defendant is a common carrier of passengers operating a street railroad in the city of Rochester. .

One of its routes is along West Main street, and across the Brie canal, which is crossed by means of a lift bridge which is elevated by means of hydraulic power to allow canal boats to pass. This bridge was constructed and maintained by the state.

. On the 4th day of October, 1889, the plaintiff was a passenger on one of defendant’s cars upon West Main street, and while the car was crossing the aforesaid bridge she was injured by being struck upon the head and shoulders by a heavy piece of pig iron, which fell from the upper part of the bridge, passing through the roof of the car, the piece of iron weighing some eighty pounds; it fell with other pieces from an iron trough, which was suspended over the railroad track.

The pieces of iron, had been placed in the trough for the purpose of being used as balance-weights in elevating and lowering the bridge.

The trough was supported by stirrups attached to an iron cable, and the accident was caused by the giving way of an imperfect welding in one of these stirrups, which allowed one end of the trough to drop and the pig iron to slide out of the trough upon the car.

This case was before this court at a prior term, upon a motion for a new trial upon exceptions directed to be bear’d at the general term, in the first instance, after a non-suit of the plaintiff, and the facts of the case are fully and clearly stated in the opinion of Justice Dwight, reported in .the 59 Hun, 583; 37 St. Rep., 317.

A new trial was granted, and upon the retrial at the close of the evidence the court intimated that it would submit no question of fact to the jury except the question of damages.

.' The defendant’s counsel thereupon asked to have submitted to the jury the question as to whether the omission upon the part of the defendant, under the circumstances of the .case, to discover the defect in the bridge was negligence on the part of the defendant, and whether it was negligence for the defendant to continue to drive its cars across the bridge with such knowledge as it did have of the manner of its construction.

The court denied the defendant’s request, and decided that it would submit no questions of fact to the jury except the question of damages.

The defendant’s counsel duly excepted to the refusal of the court to submit the questions so requested, and excepted to the ruling of the court that it would submit no question of fact except the question of damages.

Plaintiff’s injuries were concededly attributable to a defective appliance, called upon the trial a stirrup or' saddle, which formed a part of the bridge over which the plaintiff was riding in the defendant’s car as a passenger at the time she received the injuries.

It was established upon the trial that the stirrup was imperfectly welded when it was made. It was proven that the defect could have been easily discovered by the manufacturer if he had subjected the stirrup to a well known test.

This evidence was wholly uncontroverted.

The bridge had been adopted and used by the defendant in its business as a means of transporting passengers.

It was decided by this court in 59 Hun, supra, “ that the defendant was chargeable with all of the defects of the structure, whether original or resulting from wear and tear, whether latent or patent, to the same extent as if it had been constructed by the defendant itself or owned and controlled by it”

“ That the carrier of passengers contracts not only for his own skill and care in the conduct of the business, but for the skill and care of all those who have made or furnished any of the instrumentalities or appliances by means of which the business is conducted.”

This branch of the plaintiff's case was so clearly and conclusively proven, and there being no evidence or circumstances which tended to disprove the defendant's negligence, had the question been submitted to the jury, that they could not reasonably have found for the defendant.

The record contains no evidence that the defendant ever inspected the bridge during the two years or more it used it prior to the accident

The court may withdraw a case from the jury altogether and direct a verdict for the plaintiff or defendant as the case may be when the undisputed evidence is so conclusive that the' court would be compelled to set aside a verdict returned in opposition to it. D., L. & W. R. R. Co. v. Converse, 139 U. S., 469; Dwight v. Germania Life Ins. Co., 103 N. Y., 343; 3 St. Rep., 115.

If it is proper to take all the questions of fact from the jury in a case where the evidence is uncontroverted, it is proper to refuse to submit a single question to them where it is established by the evidence beyond controversy; it was so held in the case of D., L. & W. R. R. Co. v. Converse, supra.

Had the questions that the defendant asked to have submitted to the jury been submitted and found in its favor, the result of the trial would have been the same, for the defendant’s negligence consisted not necessarily in its failure to inspect the bridge, but in its use with an original imperfection, which imperfection was the cause of the accident.

We agree with the ruling of the trial court that the only question for the jury was the question of damages.

The defendant contends that the verdict of thirty-five hundred dollars was excessive and that a new trial should be granted for that reason.

Plaintiff, when she received her injuries, was about fourteen years of age.

She was so severely injured that she was carried home senseless ; her mother testifies that she did not recover her senses for twenty-four hours, and only partially then; that she complained of soreness in her shoulder, in her back; that her face was red and badly cut; that she remained in bed for two weeks; that her sight was affected; that she was nervous and sleepless; that before the accident she was healthy and slept well and was not nervous.

Plaintiff "testified that she suffered much pain; that she had ever since the accident (a period of twenty months), suffered from dizziness and headache; that she was sleepless nights; that her ability to study had been affected; that she could not study at night; that at times she was not able to see and had not been able to go to school steadily since her injury.

The" physician who attended her testified that she suffered at first from nervousness, that her appetite was not good and that she lacked nutrition and was pale and weak, and that the effects of the injury might continue for a considerable time, but he could not say that the injuries would be permanent.

The amount awarded the plaintiff was in our judgment large.

The question of damages was one peculiarly for the determination of the jury.

The jury in this case were aided in determining the extent of plaintiff’s injuries by seeing her at the trial.

The trial justice, after hearing the testimony and seeing the plaintiff, decided that the verdict was not excessive. We do not, therefore, feel justified in disturbing the verdict on the ground that it is excessive.

It follows that the judgment and order appealed from should be affirmed.

Dwight, P. J., and Macomber, J., concur.  