
    Christina Anderson, Resp’t, v. The Manhattan Railway Co., App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed December 5, 1892.)
    
    1. Negligence—Objects falling from elevated road.
    While plaintiff was passing beneath defendant’s structure its servants were distributing guard timbers by sliding them over the car and letting them fall on the platform. 'A piece of wood was thereby knocked from the platform, which struck and injured plaintiff. There was evidence that said piece was so rotten that it could be broken with the hand. Held, evidence of negligence for the jury.
    2. Same—Damages.
    Plaintiff was sixty-nine years old, and earned about six dollars a week washing and scrubbing. The injury produced was a scalp wound, but plaintiff complained of pains in her head and other troubles which may be attributable to morbid condition. Held, that a verdict' of §5,000 was excessive.
    Appeal from judgment on verdict for $5,000, and from order denying a new trial.
    Action for personal injury from the negligence of the defendant.
    
      R. L. Maynard, for app’lt; J. Edward Swanstrom, for resp’t.
   Pryor, J.

We decline discussion of the proposition advanced by appellant, that except when a contractual relation subsists the mere occurrence of a casualty is no evidence of negligence; because we End in the rqcord sufficient proof prima facie of the absence of ordinary care on the part of defendant’s servants.

The injury of which thé plaintiff.complains was caused by the fall of a piece of wood from defendant’s elevated railway. The defendant was engaged in placing additional guard-timbers along its track. From their size, these timbers were manifestly of considerable weight. They were distributed by sliding them over the car and then letting them fall on the edge of the walk or platform. On the occasion in question, one of these timbers, so distributed, struck the platform and knocked a piece out, which fell on the plaintiff, eighteen or twenty feet below in the street. This piece of the platform was exhibited to the jury, and was rotten, so rotten that it might be broken with the hand, and so rotten that its condition was discoverable by ordinary inspection. Here, undubitablv, was evidence of negligence for the jury. Treanor v. Manhattan R. Co., 41 St. Rep., 615 ; Volkmar v. Manhattan R. Co., 47 id., 631, court of appeals.

Appellant contends, however, that the presumption of negligence, if any, shown bv the plaintiff, was rebutted and destroyed by the contrary evidence. But that was just the question for the jury; and as the evidence conflicted, and the credibility of the testimony was exclusively for their judgment, we are not permitted to gainsay their decision and set aside the verdict as unwarranted by the proof. Volkmar v. Manhattan R. Co., supra.

Although we cannot reverse the judgment for error or insufficient evidence, we are clearly of opinion that the recovery is excessive.

The plaintiff was in her sixty-ninth year ; she was a confirmed invalid ; in her occupation of washing and scrubbing she earned, apparently, on an average, six dollars a week; in itself, the wound inflicted by the defendant was neither painful nor serious nor incurable, but was important only in its consequences; these consequences, if they exist, which is doubtful, may be attributable to her morbid contition rather than to the injury inflicted by the defendant.

Our conclusion is that $2,500 would be a just compensation to the plaintiff; and that, if she accept this sum, the judgment should be affirmed; else, that it be reversed and a new trial awarded.

Judgment reversed, with costs to abide the event, unless plaintiff stipulate to reduce it to $2,500. If she so stipulate, judgment as modified affirmed, with costs.

Daly, Ch. J., and Bischoff, J., concur.  