
    Henry M. Weber, Plaintiff, v. The International Railway Company, Defendant.
    ("Supreme Court, Erie Special Term,
    December, 1907.)
    Damages — Writ of inquiry and assessment of damages by judge or sheriff’s jury,— Setting aside writ.
    An inquisition by a sheriff’s jury will not be set aside simply because of the admission of improper evidence, but only where it appears that injustice has been done.
    It is not to be expected that a sheriff will be competent to apply the rules of evidence with the same strictness or accuracy as a judge trained in the law; and, where the jury may possibly have given a little more damages than they otherwise would if certain objectionable evidence had been excluded, though this is not apparent but only problematical and doubtful, and where, leaving out of consideration such evidence, there remains ample competent testimony as to the serious character of plaintiff’s injuries and their effect upon his ability to earn a competent and sufficient livelihood for himself and family, and where it cannot be said that the verdict rendered was unfair, unjust or excessive, the inquisition will not be set aside.
    The counsel for the parties have no legal right to sum up the case to a sheriff’s jury; but, where both consent to it and avail themselves of the privilege, the inquisition will not be set aside, though it appears the counsel for the prevailing party used improper and intemperate expressions and displayed greai zeal and ardency in beh-alf of his client, and, i perhaps, went beyond the bounds of legitimate advocacy.
    
      Motion to set aside an inquisition.
    John H. Clogston, .John H. Brogan, for plaintiff.
    Cohn & Chorman, for defendant.
   Marcus, J.

This is a motion to set aside an inquisition and that a new writ of inquiry issue. The action was brought to recover damages for personal injuries sustained in a collision of railway cars, and the evidence shows that the injuries are of a serious character. The jury awarded $4,000 damages.

In Bossout v. Rome, W. & O. R. Co., 131 N. Y. 37, it is held that, even where the assessment is by a jury at circuit, the rules for reviewing the trial of an action did not prevail; that a motion may be made to set aside the inquisition, but it will not be granted, however, simply because of the admission of improper evidence, but only where it appears that injustice has been done; and the motion is addressed to the discretion of the court. A fortiori where' the assessment is by a sheriff's jury under the supervision of a layman.

In Sharp v. Dusenbery, 2 Johns. Cas. 117, the court said: The parties, by their agreement, made the sheriff as a judge at a circuit; and, when parties agree to submit a controversy to .the decision of the sheriff, the inquest is to be considered as in the nature of an arbitration; and, in súch case, the court will never set aside the inquisition merely because the sheriff admits improper, or rejects proper evidence.”

In Mankleton v. Lilly, 3 N. Y. St. Repr. 421, the action was for slander, and the sheriff permitted the defendant to introduce evidence of matters which had no legitimate hearing in mitigation of damages. The jury awarded plaintiff fifty dollars, and the court set aside the inquisition. But that case is materially different in its circumstances.

The defendant’s counsel had the privilege of having the damages assessed by a jury'at the Trial Term, under the supervision of a justice of this court, but did not see fit to avail himself of it, but consented that they should be assessed by a sheriff’s jury. He now asks that the verdict be set aside and that the execution of any new writ of inquiry herein be had before a justice of this court at a regular Trial Term thereof. Counsel was aware that plaintiff would call physicians to establish the nature and extent of his injuries, and that various questions would be put to them calling for their professional opinions upon a variety of matters relating to the same, including the reasonable certainty or even probability of the injuries being of a permanent character. It was not to be expected, of course, that the sheriff would be competent to make rulings upon the admissibility of evidence of that kind, without falling into frequent and, perhaps, serious error. It is. neither expected nor required that the sheriff shall apply the rules of evidence with the same strictness or accuracy as a judge trained in the 'law. Of all this the counsel was well aware, and yet he thought it advisable or desirable to try the experiment, take the risk, and run his chances. Now he seeks to be relieved of the resultant consequences, upon the ground that the sheriff really did commit the very kind of errors he might have been expected to commit, under the circumstances.

• Perhaps it would be more charitable to relieve the sheriff from the accusation and impose the responsibility upon plaintiff’s counsel.

Some of the questions, however, to which objection was taken, and which related to the probabilities as to the permanency of the injuries, and so forth, may, it would seem, be sustained upon the authority of Kelly v. United Traction Company, 88 App. Div. 283.

Kumerous objections to evidence were taken during the course of the hearing, but it is not reasonable to expect that the court, upon a motion of this character, should review all, or even most of them, or critically examine and weigh the effect of each item. The duty of the court is merely to take the case as a whole and weigh it as a whole, and then determine whether the ends of justice require our interference with the verdict. The ground of defendant’s motion is that the damages are excessive, and made so by the admission of certain incompetent, speculative opinions of the physicians, and other testimony of an inadmissible character. The jury may, possibly, have given a little more damages -than they otherwise would if some of this evidence had been excluded; but this is not apparent, only problematical and doubtful. For, leaving out of consideration some of this evidence that counsel says is merely opinion as to probable consequences, there remains ample competent testimony as to the serious character of the injuries and their effect upon plaintiff’s ■ability to earn a competent and sufficient livelihood for himself and family. Talcing the facts alone and the fair, just inferences that the jury would be warranted in drawing therefrom, it cannot be said that the yerdiet rendered was unfair, unjust or excessive. The pain and suffering was an element of damage of which there is no standard, and we •must assume that the jury took that in consideration in'making up their award.

Defendant called two physicians whose opinions were, as usual in such cases, in some respects inconsistent with or in contradiction of the testimony given by the plaintiff’s two experts.

These experts were examined and cross-examined, and reexamined in a most thorough manner, and the whole matter' was most thoroughly threshed out for the benefit of the jury; they formed their judgment upon all the material and we do not perceive it is our duty to set aside their verdict.

Upon appeal from decisions of surrogates, who are counselors-at-law, their judgment will not be reversed for error in admitting or rejecting evidence, unless it appears that the exceptant was necessañly prejudiced thereby. Oode, §, 2545. And in equitable suits a judgment will not be reversed because of the admission of improper evidence unless it can be seen that the error has affected the result. 100 App. Div. 86. And this rule should be most liberally applied in favor of the rulings of a sheriff, a mere layman, and to uphold the determination of the jury.

Another ground of objection is that plaintiff’s counsel was permitted to make “ divers improper statements to the jury during the conduct of the case and in summing up the case before the jury,” to the defendant’s prejudice; that it was the duty of the counsel to use even greater care than upon the trial of an issue, to do nothing which should prejudice.”

We believe it is permissible, even in trials for homicide, to exhibit the bloody clothes to the jury; but, surely, it was to be expected that the plaintiff’s shirt should be saturated with blood, and it is not perceivable how the jury could be prejudiced by showing that of which they were already supposed to he cognizant.

The learned counsel, it appears, used improper and intemperate expressions, displayed great zeal and ardency in behalf of his client, and, perhaps, went beyond the hounds of legitimate advocacy. Still, we are unable to perceive that it is the duty of the court to set aside the inquisition, in view of all the evidence adduced.

We are not aware that counsel have a legal right to sum up to the sheriff’s jury; however, both counsel apparently consented to it, as both availed themselves of the privilege. And, however edifying and instructive the address of counsel may be, it is neither proper nor necessary, in a matter of this kind, to present the whole of it to the court.

Motion denied, with costs.  