
    Andrew Morris, Resp't, v. The Eighth Avenue Railroad Company, App'lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March, 17, 1893.)
    
    1. Negligence—Street railroads—Evidence.
    In an action for damages for injuries caused by being run over by defendants’ street railroad car, it was contended that plaintiff was drunk at the time of the accident, and plaintiff’s employer was asked if, during the time of plaintiff’s employment, he had occasion, at any time, to lay him off for drinking beer. Meld, that the question was properly refused as too indefinite as to time or circumstance.
    3. Same—Contributory—Intoxication .
    The plaintiff requested the court to charge “that if the jury find from the evidence that the plaintiff was intoxicated, that is a matter of no consequence, unless the jury further find that his intoxication contributed to the injury.” The court answered: “That is so. The intoxication is of no consequence, unless it made him more careless.” Meld, that the jury could not have understood from the word “ more ” that the court intended to instruct them that the plaintiff might have been somewhat careless and still recover, as they had been already instructed that any negligence of the plaintiff, contributing to the injury, would defeat a recovery.
    3. Same.
    A railroad corporation is not exempted from damages for injuries received while riding on a platform, unless there is at the time sufficient room for the proper accommodation of the passengers inside the car.
    4. Same—Damages.
    It appeared that plaintiff had been employed as a mason’s tender, at two dollars per day, when he was able to secure work. Meld, that a verdict of $9,000 was excessive. (O’Brien, J., dissents.)
    Appeal from, a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial in an action to recover damages for personal injuries.
    
      John M. Scribner, for app'lt; G. Washbourne Smith (Nelson Smith, of counsel), for resp't.
   Follett, J.

At about half past seven o’clock of evening, September 27, 1890, at the corner of Eighth avenue and Forty-first street, one of the defendant’s cars passed over the plaintiff’s right leg, crushing it near the ankle, so that amputation was necessary. The plaintiff alleged that he signaled the driver, that the car was stopped, and while he was entering by way of the front platform, the car was suddenly started, and he was thrown under the wheel. At this time the car was moving south. The plaintiff left the east sidewalk of the avenue, and attempted to board the car as it crossed Forty-first street. But two questions of fact were litigated: (1) Was the car in motion when the plaintiff attempted to board it ? (2) Was the plaintiff intoxicated at the time of the accident?

The plaintiff, Fisher, Maloney and McDowell testified that the oar was standing still when the plaintiff began to get on to it Two of the defendant's witnesses so testified—Radley and Mc-Faden. The only witnesses who testified that the car was moving when the plaintiff attempted to enter it were the conductor and driver. Several of the witnesses who testified that the car was not moving when the plaintiff began to get on to it had no apparent interest in the result of the trial, or feeling for or against either litigant, and it cannot be said that this issue was found contrary to the weight of evidence. The plaintiff and four witnesses testified that he was not intoxicated at the time of the accident. Radley, a witness sworn for the defendant, testified that the plaintiff, in passing from the sidewalk to the car, walked unsteadily, and appeared to be intoxicated. Gfiblin, a policeman, testified that the plaintiff acted like a man under the influence of liquor. The car driver testified that he might be slightly intoxicated, “but, then, I could not rightly tell.” Opposed to this was the evidence of the four witnesses referred to, one of whom was a surgeon who examined the plaintiff as he lay on the sidewalk, and the other three had better opportunities for knowing the condition of the plaintiff than the defendant’s witnesses. Whether the plaintiff was or was not intoxicated was a question for the jury, and its verdict should not be disturbed.

There was some dispute over the question whether the car was crowded upon the occasion. The defendant insists that it was not, and that it was negligent for the plaintiff to attempt to enter the car by the front platform. Defendant’s conductor testified that ten seats were unoccupied, while, on the other hand, Fisher swore that the car was very full; and McDowell, that it was so crowded people were standing between the seats. This issue was a fair question for the jury. In brief, every essential fact necessary to support the verdict was sufficiently established so that it cannot be set aside as against the weight of evidence. There was no error in the refusal of the court to dismiss the complaint when the plaintiff rested, or at the close of the evidence. •

The appellant insists that the court erred in refusing to permit the witness Delelianty to answer the following question ; “ Question. During the time of the plaintiff’s employment by you, did you have occasion, at any time, to lay him off for drinking beer? Objected to by plaintiff’s counsel. The Court: I think that is too remote. Defendant’s counsel: I can’t fix it on the day that the accident happened, as I expected from this witness, but I propose to show that, on more than one occasion, that he had been laid off by reason of his use of beer. The Court: That might be quite true, and not touch this case. I exclude that.” To this ruling the defendant excepted. The witness testified that the plaintiff had been in his employ for two years, and we think that the question was not sufficiently definite, as to time or circumstance, to make the refusal of the court to permit it to be answered error. The defendant did not offer to show that the plaintiff was a man of intemperate habits, nor that he had drank too much on any particular occasion, near to or remote from the date of the accident

Upon the question of intoxication the court charged, at the defendant’s “ If the jury believe, from all of the evidence in this case, that the plaintiff, at the time of his injury, was intoxicated, and. if the jury believe that the plaintiff’s intoxication caused, or contributed to produce the injury received by him, then the plaintiff cannot recover, and the defendant is entitled to a verdict.”

The plaintiff requested the court to charge: “ That if the jury find from the evidence that the plaintiff was intoxicated, that is a matter of no consequence, unless the jury further find that his intoxication contributed to the injury. The Court: That is so. The intoxication is of no consequence, unless it made him more careless.” To this instruction the defendant excepted. It is conceded that if the word “ more ” had been omitted the instruction would have been unexceptionable. We do not think that the jury could have understood from the word “ more ” that the court intended to instruct them that the plaintiff might have been somewhat careless, and still recover; for the jury had been instructed that any negligence of the plaintiff, contributing to the injury, would defeat a recovery, and that the burden was upon him to show that he was not negligent.

The appellant insists that the plaintiff cannot recover because he was riding on the platform of the car in violation of the printed regulations posted on the car pursuant to § 53, chap. 565, Laws 1890. Assuming that this section is applicable to street railways, which we do not decide, the answer to the position is that the plaintiff was not voluntarily riding on the platform, but was simply using it as a means of entering the car. Besides, the corporation is not exempted from damages for injuries received while riding on a platform, unless there is a.t the time sufficient room for the proper accommodation of the passengers inside the car. Whether this car was crowded or not was a disputed question of fact.

The verdict in this case was for $9,000. The evidence shows that the plaintiff had been employed for two years as a mason’s tender, receiving two dollars per day when he was able to secure work. The verdict, at five per cent interest, represents an earning power of $450 ; considerably more, probably, than the plaintiff could have earned. He was entitled to be compensated for the pain and suffering which he had endured, and for his diminished ability to earn money in the future. The interest on the verdict indemnifies the plaintiff for his diminished earning power, and the principal sum is in addition. This, we think, is more than compensatory damages, and that a verdict of $5,000 is all that the evidence warrants. The judgment and order are reversed, and a new trial granted, with costs to abide the event, unless the plaintiff stipulates, within twenty days after the entry of the order, to reduce the amount of the damages to $5,000, in which event .the judgment, as modified, and the order are affirmed, without costs to either party.

Van Brunt, P. J., concurs.

O’Brien, J.

I concur in all but the conclusion. The facts warrant a recovery for the amount awarded by the jury, and I think the judgment should be affirmed.  