
    Edward H. Swan, Jr., Resp’t, v. Long Island Railroad Company, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 15, 1894.)
    
    Damages—Excessive.
    A verdict for $12,500 for personal injuries was held to be excessive under the facts and circumstances of this case. "
    Appeal from a judgment entered on a verdict-in favor of plaintiff, and from an order denying a motion for a new trial.
    
      William C. Beecher, for app’lt; Wilhelmus Mynderse, for resp't.
   Parker, J.

— The evidence fully justified the court in submiting to the jury the question of defendant’s negligence. -They not only found that the injury to the plaintiff was wholly due to defendant’s neglect, but that he had sustained damages in the sum of $12,500. It appears that since the injury, plaintiff has expended $200 for medicine, and about $450 for medical attendance; that it was over five weeks after the accident before, he was able to return to the city; and that thereafter he used a crutch for a period of eight weeks, and still continues to use a cane. Further inquiry is naturally prompted in respect to the nature of an injury which caused the jury to award to the plaintiff damages in a sum which, if invested at the rate of 5 per cent, would produce an income of $625 a year during his life, and leave the principal intact for those dependent upon him; a yearly income equal to 25 per cent, of that resulting from his labor both before and since the accident,—for his employers continue to pay him the same salary as before. Dr. Steinzig, who dressed the wound immediately after the injury, testified: 11 In other words, the leg was black and blue from a point a little above the knee joint to a point a little below, —about five inches,—and under the knee there was a slight cut of the skin. Couldn’t sáy how deep the cut was under the knee joint. I couldn’t say whether it was anything more than a superficial cutting away of the skin. I don’t think it was more than a quarter of an inch wide. I should think it was an inch long. It was not a cut. It was more of a tear; not a clean cut. There was no bone broken, no muscle cut, no cord cut, and no vein or artery cut, that I could see.”

The other physician called by the plaintiff said that “ one of the principal nerves of the limb had received contusion, as shown by an examination of the parts beneath it; that is, of impaired sensibility,”—for which he prescribed tonics, electricity, and that the patient go into the country. The plaintiff explained how the injury had kept him from lawn tennis, boating, and athletics generally, and described quite fully the severity of the pain which he had suffered, and was still suffering. The doctor gave him such support as he reasonably could in that direction. He said: “On examining it, I found that there was a horizontal scar in the ham, about behind the knee. On making extension, very great pain. Q. Could you judge, from your examination, of the cause of his pain, and, if so, in what way, other than from the simple statements of the witness ? A. It is different with different patients. In Mr. Swan’s case, 1 judged from his character that he knows when he is hurt; and if I press on a certain place, and he complained of pain, and I press on another place, and he does not complain of pain, I have reason to believe he is not deceiving me, and he had pain over the parts about which he complains when I used the pressure.”

It is quite apparent that his answer is not within the definition of “ diagnosis” as given by Judge Finch in Griswold v. N. Y. C. & H. R. R. Co., 115 N. Y. 64; 23 St. Rep. 729. He said, “at the best, diagnosis is little more than a guess enlightened by experience.” Here we have, so far as the element of pain is involved, a guess enlightened only by the statement of the patient, which ought not to have had, but probably did have, greater weight because reaching the jury through the mouth of the physician. Undoubtedly, the bruise was a severe one, occasioning the plaintiff expense, preventing him, for a time, from working, and causing him to suffer severe pain. But the results flowing from it did not justify, as we think, an award to the plaintiff of $12,50, as compensation for the injury sustained.

The judgment should be reversed because the damages are excessive, and a new trial granted, with costs to the appellant, to abide the event.

All concur.  