
    Charles H. Caldwell, Resp’t, v. The Central Park, North & East River Railroad Company, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed February 5, 1894.)
    
    1. Appeal.—Motion to strike out.
    The refusal of the court to strike out all the testimony on a subject, where no ground for the motion is stated, is proper.
    8. Same.—Charge.
    A charge, in an action for an assault, that, if the plaintiff is entitled to a fair and reasonable compensation for the pain and suffering which he has endured, is no error.
    3. Damages.—Nominal.
    There is no rule which limits the recovery for a wrongful assault to nominal damages.
    Appeal by defendant from a judgment entered upon the verdict of a jury in favor of the plaintiff for $750 damages for being forcibly ejected from defendant’s car at the south ferry. Appeal from order denying a motion for a new trial.
    
      Wolff & Hodge (Robert Seiuall, of counsel) for def’t-app’lt; Traax & Crandall (Chauncey S. Truax, of counsel) for pl’ff-resp’t. „ ,
   Daly, Ch. J.

Plaintiff says that just as he was about to board a car of defendant at the South Ferry, the conductor accused him of being drunk and shoved him off with such violence that he fell and sustained the injury to his wrist and arm, for which he sues. A witness, O’Donnell, who says that he was ten or fifteen feet distant, corroborates the plaintiff as to the assault; and another witness, Gibbons, who was thirty feet away, saw the conductor shove the plaintiff off, saw the latter fall and was told by the conductor that he put the man off because he was drunk. The conductor testified that the plaintiff entered his car and became disorderly and was ordered off, but refused to go, that he laid his hand on plaintiff’s shoulder, but did not pitch him off, and that plaintiff got off and wanted to fight witness, who then started his car and left the scene. The driver heard the plaintiff abuse the conductor and saw the latter take him by the shoulder and put him off the car, and he testifies that the plaintiff stepped off. No other witnesses saw the occurrence. Upon this state of the proof, we are asked to say that the plaintiff’s story is improbable and that a verdict in his favor for assault is against ithe weight of evidence. Several other witnesses, the policeman on duty, sundry drivers and conductors and the starter of defendant, were called as witnesses, but none of them saw the plaintiff until he left the car or was ejected from it, and their evidence is relied upon to sustain the claim that the plaintiff was intoxicated and disorderly.

The fact that the plaintiff was ejected from the- car is beyond dispute and the question for the jury was whether it was justified by his intoxication and whether unnecessary force was used. Upon the first point, there was the evidence of all the plaintiff’s witnesses that he was sober and the admitted fact that immediately after his ejection he was put on another car by the starter and sent up to the office of the company to report the conductor if he desired to do so. Upon the question of the use of excessive force, we have the testimony of the plaintiff and his two witnesses against that of the conductor and the driver and the preponderance seems to us to be with the plaintiff. But all of the evidence was fairly submitted to the jury and their verdict cannot be disturbed.

Error is claimed in the refusal of the court to strike out of the testimony of the hospital surgeon a statement that the plaintiff was not intoxicated when he came for treatment on the day of the accident. The surgeon testified that he had no memory of the matter except from the record in his book, which he produced in court, but no objection was taken to his testimony although the book ,was not offered in evidence; but when subsequently on cross-examination the witness repeated his statement that he had no memory as to whether plaintiff was intoxicated or not excepting what he saw in the book, defendant moved to strike out all of his testimony on that subject. The motion was properly denied, for it did not appear that the book contained nothing on the subject and defendant had previously permitted the witness to testify to the fact without calling for the book as the best evidence. Had it appeared from an inspection of the book that the record contained nothing on the subject of the plaintiff’s sobriety the motion would have been proper; or had the motion been made upon the ground that the book was the best evidence its denial would have been error. No ground, however, was stated for the motion, and the defendant’s adversary and the court were left to conjecture upon what it was founded.

It was not error to refuse to charge the jury that if the plaintiff’s injuries were received by his slipping on the icy pavement after he was safely standing on the street nominal damages only could be awarded, even if the jury believed he was wrongfully assaulted. There is no rule which limits the recovery for a wrongful assault to nominal damages. Besides, there was po evidence that plaintiff slipped on the ice. The defence denied that he fell.

Exception was taken to the charge of the j udge that if the plaintiff was entitled to a verdict he was entitled to a fair and reasonable compensation for the pain and suffering, both mental and physical, which he had endured. It is argued that the plaintiff alleged no mental pain and that none had been proven. With human beings mental sufferings is inseparable from physical pain and agony and a condition of long and continued sickness and disability, all of which were proven, and the mental pain and suffering referred to by the trial judge could not have been understood as including anything more than the inevitable concomitants of the physical suffering. The criticism upon the charge is unsubstantial.

The last objection raised is that the verdict of $750 was excessive, but we think it not unreasonable compensation for an unjustifiable assault, which deprived plaintiff for several months of the use of his arm and caused him pain and suffering.

The judgment and order should be affirmed with costs.  