
    (52 Misc. Rep. 501)
    RHODES v. UNION RY. CO.
    (Supreme Court, Appellate Term.
    February 4, 1907.)
    Damages—Personal Injuries—Instructions.
    An instruction, in a personal injury case, that in estimating plaintiff’s damages it was fair for the jury to say what they would under similar circumstances accept for the suffering plaintiff had testified to and what would be a fair allowance for that suffering, and that the jury could put themselves in her position in determining that amount, is erroneous.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Damages, § 548.]
    Appeal from Municipal Court, Borough of the Bronx, Second District.
    Two actions by Margaret A. Rhodes against the Union Railway Company, one for personal injuries and one for injuries to personal property. From both judgments in favor of plaintiff, defendant appeals. Judgment in the action for personal injuries reversed, and a new trial ordered, and judgment in the action for injuries to property affirmed.
    Argued before GILDERSEEEVE, ( BLANCHARD, and DAYTON, JJ.
    William E. Weaver, for appellant.
    Tierney & Conlon (Frank E. Tierney, of counsel), for respondent.
   DAYTON, J.

Defendant appeals from two judgments—one for damages for personal injuries and one for injuries to personal property —caused by the alleged negligence of the defendant. Both actions were tried together. In the action for personal injuries the verdict was for $500, and in the action for. property injuries the verdict was $77. During that part of the charge in the action for personal injuries the trial judge said:

“Should you bring in a verdict for her, it must be for a sum that would compensate her for her injuries so far as you can do it; and it is fair for you to say in a case of that kind what you would under similar circumstances. Accept yourself for that suffering she has testified to, that pain and agony for a number of weeks, under the doctor’s care every day being treated for it, and confined to a room or bed with those sufferings, and what would be the fair allowance, for it; and you can put yourself in her position in doing so.”

He then proceeded to refer to the doctor’s and medicine bills and to the injuries to the plaintiff’s clothing, which were involved in the other action.

Defendant’s Counsel:

“I desire to take an exception to the court’s charge in relation to the damages, and that the measure of damages is what they would expect to receive under similar circumstances.”

The Court:

“I did not say ‘is.’ I said, ‘You may’ put yourself in her place and consider what you would be willing to take under the circumstances.”

To this also defendant’s counsel excepted.

This language is, unfortunately, obnoxious to the decisions in Schmidt v. Interborough R. T. Co. (Sup.) 97 N. Y. Supp. 390, and Stantial v. Union Ry. Co. (Sup.) 101 N. Y. Supp. 662. I say unfortunately, because plaintiff had proved her case; and while I doubt, taking the charge in its entirety, that this language affected the amount of the verdict, nevertheless that doubt may not be urged against the foregoing authorities.

The judgment for $536.50 in the action for personal injuries must therefore be reversed and a new trial ordered, with costs to the appellant to abide the event. The judgment for $99 in the action for injuries to property should be affirmed, with costs. All concur.  