
    Samuel T. Penna, as Executor, Etc., Respondent, v. The Interurban Street Railway Company, Appellant.
    Appeal by the defendant from a judgment in favor of the plaintiff, entered in the City Court of the city of New York, upon the verdict of a jury; and also from an order denying defendant’s motion for a new trial.
    Bayard H. Ames, for appellant.
    Lavinia Rally, for respondent.
   Scott, J.

The plaintiff’s testator was injured through a collision between an express wagon, in which he was riding, and a car belonging to defendant. There was sufficient evidence of the negligence of defendant’s servant. Plaintiff’s testator had nothing to do with the driving of the express wagon and was not sitting on the driver’s seat, but upon a trunk inside the wagon, which was covered, near the rear end. It did not appear that he was in a position to see the approaching car, or that he did see it. Under the facts as proven, the driver’s negligence, if there was any, is not imputable to plaintiff’s testator. It is urged, however, that plaintiff’s testator himself was guilty of negligence in that he did not anticipate that there might be danger, and look out for it, and Brickell v. N. Y. C. & H. R. R. Co., 120 N. Y. 290, is cited as authority for so holding. The circumstances in that case were quite different from those in the present; for there the plaintiff was sitting on the driver’s seat with the same opportunity to see the threatening danger as the driver himself had, and it was, accordingly held that she should have looked out and warned the driver. In the present case, the person injured was in no such position; and the case does not essentially differ from Waters v. Metropolitan St. R. Co., 85 N. Y. Supp. 1120, in which a judgment for the plaintiff was sustained. The record does not show that the particular point now relied upon was made at the trial, or that it was raised by any request to charge, or by an exception to the charge as made. In our opinion it cannot now prevail to reverse the judgment. We are of opinion, however, that the verdict was somewhat excessive. The immediate injuries were not serious; and, although the plaintiff testified that he felt pain down to the date of trial, there was no competent evidence, medical or otherwise, to connect that pain with the injury produced by the accident.

The judgment and order appealed from will, therefore, be reversed and a new trial granted, with costs to appellant to abide the event, unless plaintiff shall stipulate to reduce the judgment to the sum of $856; in which case the judgment, as modified, and the order will be affirmed, without costs in this court.

Gildebsleeve and MaoLean, JJ., concur.

Judgment and order reversed and new trial granted, with costs to appellant to abide event, unless plaintiff shall stipulate to reduce judgment to $856, in which case judgment, as modified, and the order will be affirmed, without costs in this court.  