
    (73 Hun, 512.)
    MILLER v. MANHATTAN RY. CO.
    (Supreme Court, General Term, Second Department.
    December 1, 1893.)
    1. Damages—When not Excessive.
    A verdict for $2,232 for personal injuries is not excessive where it appears that plaintiff was earning $25 per week before the injury, that he was prevented thereby from doing his work for five weeks, that he was confined to his bed for 10 days, and that his earning power was reduced to about $8 per week. ¡
    8. Same—Evidence.
    Where the plaintiff in an action for personal injuries states that plaintiff suffered a loss of power to labor, it is competent to show what wages he earned before the injury and afterwards.
    Appeal from circuit court, Kings county.
    Action by Edward Miller against the Manhattan Railway Company to recover damages for personal injuries alleged to have been inflicted by defendant’s servant. From a judgment entered on a verdict in favor of plaintiff for $2,232.60, and from an order denying a motion for a new trial on the merits, defendant appeals.
    Affirmed.
    Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
    
    Davies, Short & Townsend, (Frederic A. Ward, Julien T. Davies, and Charles A. Gardiner, of counsel,) for appellant.
    Charles J. Patterson, for respondent.
   BARNARD, P. J.

The case shows that the plaintiff is a man of over 68 years of age; that on the 10th of May, 1891, he was carried as a passenger by the defendant to the City Hall station. The car was crowded on the inside, and the plaintiff stood upon the platform, because he could not get in the car. Upon an arrival at a station the platform passengers crushed up so as to let the train deliver and receive passengers. At one of the stations— either Eighteenth or Fourteenth street—the defendant’s guard suddenly, and without notice, gave the plaintiff a violent push that carried the plaintiff off the train upon the platform, and threw him violently down so as to throw him upon the back of his head. The guard did this in closing the gate. The plaintiff did what he could to crowd himself away from the gate, but the pressure was so great that he could not do so. The act of the guard has no justification. The carrier received him as a passenger, and overcrowded the car so that there was difficulty in opening and shutting the gates. The guard could not, without notice in some, way to the passenger, throw him off the car to remedy the effects of the overcrowding. The defendant was liable for his act. Dwinelle v. Railroad Co., (N. Y. App.) 24 N. E. 319.

The damages are not excessive. The plaintiff was a shoemaker, and was earning $25 per week. He was prevented, by his injuries, from doing his work for some 5 weeks, and he was confined to his bed for 10 days. His earning power is reduced from $25 per week to $7 and $8 a week. The proof of the wages the plaintiff was earning, before the accident and since, was proper. The complaint states that the plaintiff was disabled from his labor, and suffered a loss of power to labor. The evidence is directly in support of the complaint.

The admission of the testimony of Dr. Woodworth was not erroneous, under the case of Strohm v. Railroad Co., 96 N. Y. 305. The evidence of the expert was not to the effect that the results of the injury were possible or contingent. The medical opinion was clear that the tenderness of the muscles which he found on plaintiff was the result of the injury in question. The charge was free from objection. If the plaintiff was correct in his narrative of the injury, there was no defense for it. If he refused to get out of the way of the gate when he could do so, he could not recover. There was proof from which the jury could find that the guard intended to push the plaintiff, and the statement of the judge that it was not justifiable to do that was proper, under our view of the testimony. The request in respect to an intentional endeavor by plaintiff to make the company liable for ailments which existed before the accident was proper. It is not the rule, in such a case, that the jury must disregard his entire statement. The jury were told that, if the witness was false, they might discredit his testimony entirely. The judgment and order denying a new trial should be affirmed, with costs. All concur.  