
    WEBER v. INTERNATIONAL RT. OO.
    (Supreme Court, Special Term, Erie County.
    December 30, 1907.)
    1. Damages—Inquisition—Vacation—Errors.
    An inquisition on a writ of inquiry before the sheriff having been voluntarily entered into, defendant was not entitled to have the same vacated! and a new writ issued for trial before the court merely because of the admission of improper evidence by the sheriff, unless it appeared to the trial court that injustice had been done.
    
      2. Same—Hearing.
    On a motion to set aside a finding of a sheriff's jury and to issue a new writ of inquiry, the court will not critically examine the effect of each objection to evidence made, but will merely consider the case as ,a whole.
    3. Same—Pain and Suffering.
    In an action for personal injuries, pain and suffering is an element of damage of which there is no specified standard.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Damages, § 233.]
    4. Evidence—Demonstrative Evidence—Bloody Clothing.
    On a writ of inquiry before a sheriff’s jury in an action for personal injuries, defendant was not prejudiced by plaintiff’s exhibiting to the jury a shirt saturated with blood which plaintiff wore at the time he was injured.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 20, Evidence, § 679.]
    5. Same—Record—Contents—Address oe Counsel.
    On a motion to set aside an inquisition before a sheriff’s jury and for the issuance of a new writ of inquiry, it was neither necessary nor proper to present the whole address of counsel before the sheriff’s jury to the court, though certain portions thereof were objected to.
    Action by Henry M. Weber against the International Railway Company. On motion to set aside an inquisition and for the issuance of a new writ of inquiry. Motion denied.
    John H. Clogston and 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, etc., R. Co., 131 N. Y. 37, 29 N. E. 753, 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 appear^ 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. Dusenbury, 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 such 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. Rep. 421, the action was for slander, and the sheriff permitted the defendant to introduce evidence of matters which had no legitimate bearing in mitigation of damages. The jury award plaintiff $50, 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 verdiet 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, 85 N. Y. Supp. 9.

Numerous 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. Taking the facts alone, and the fair, just inferences that the jury would be warranted in drawing therefrom, it cannot be said that the verdict 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 re-examined 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 decision of surrogates, who are counsellors at law, their judgment will not be reversed for error in admitting or rejecting evidence, unless it appears that the exceptant was necessarily prejudiced thereby. Code Civ. Proc. § 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. Nickell v. Tracy, 100 App. Div. 86, 91 N. Y. Supp. 287. 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 be 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 bounds 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.  