
    Julius Vilicki, Respondent, v. The New York Transportation Company, Appellant.
    (Supreme Court, Appellate Term,
    November, 1909.)
    Negligence — Contributory negligence — Persons in street.
    New trial — Grounds — Verdict or findings contrary to law or evidence — Excessive damages.
    Where plaintiff, immediately upon alighting from a street car, was struck by an automobile which he saw approaching and which was stopped before its front wheel had gone over him, the evidence is insufficient to establish his freedom from contributory negligence.
    In such a case where the plaintiff gave no testimony as to the nature of his injuries and offered no medical testimony but was unable to work for two weeks during which he might have earned thirty-six dollars, a verdict for two hundred and fifty dollars will be reversed as excessive and a. new trial ordered.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, second district, borough of Manhattan.
    Arthur K. Wing (George F. Wing, of counsel), for appellant
    Goldstein & Goldstein, for respondent.
   Lehman, J.

The plaintiff came up Broadway with a companion in an open car; he sat at about the middle of the car. When the car reached Nineteenth street, he started to alight. He got off on the east side looking east. Before alighting, he saw an automobile approaching on its way north, and it was then about twenty feet away. He did not see the automobile after he got off the car, because he was struck immediately while right alongside of the car. His companion testifies that he was following the plaintiff off the car and, before he had both feet off the car, he saw the plaintiff struck by the automobile. The automobile stopped alongside of the car and before the front wheel had gone over the plaintiff.

The defendant put in no evidence. There is, therefore, no conflict of testimony; and the only serious question raised on this appeal is whether this testimony is sufficient to show negligence on the part of the defendant and freedom from contributory negligence on the part of the plaintiff.

The plaintiff claims that he saw the automobile when it was twenty feet, or perhaps more, away from him; and yet it struck him immediately after he alighted. Either his testimony that he saw it is untrue, or he placed himself in -a position of danger expecting the driver to avoid a collision. Even if he has shown any negligence on. the part of the defendant’s driver, he has certainly completely failed to show an absence of contributory negligence on his own part. Moreover, the damages were clearly excessive. There is no medical testimony of any kind, and even the plaintiff gave no testimony as to the nature of his injuries. It only appears that he went to the hospital and both his knees were bandaged; that he took a car home and was in bed for a week while a doctor attended him daily, and, thereafter, he was confined to his home for another week; that he suffered pain in his knee and that, during the two weeks while he was unable to work, he should have earned $36. The trial justice allowed $250 damages, ■apparently compensating him in the sum of $214 for pain and suffering.

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

Gildersleeve and Seabury, JJ., concur.

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