
    Albert Tourtelotte, Appellant, v. The Westchester Electric Railway Company, Respondent.
    Second Department,
    June 7, 1907.
    Negligence—passenger thrown from surface car by conductor — inadequate verdict.
    The plaintiff while riding on the step of an overcrowded surface car was thrown off by the conductor and injured. Evidence examined and held, to warrant a recovery.
    A verdict of §200 is inadequate.for injuries received by a man forty-six years of age, formerly in good health, consisting of broken ribs and injuries to his legs, back and spine, which confined him to his house for eight weeks and which resulted in permanent injury to the knee joint and spine.
    
      . Appeal by the plaintiff, Albert Tour.tejotte,from an order of the Supreme Court, made at the Westchester Trial Term and entered . in the office of the clerk of the county of Westchester oil the /fth day of February,-1906, denying the plaintiff’s motion to set aside , the verdict'of a jury in. his favor for $200>,'and for- a new trial made upon the ground that the. verdict was inadequate.
    
      James M. Hunt, for the appellant.
    
      Arthur M. Johnston [Bayard H. Ames and Henry A. Robinson with him on the brief], for the respondent.
   Hirschberg, P. J.:

Plaintiff was a passenger on one of the defendant’s overcrowded cars on the evening of' May 30,1904, and was' thrown off by the conductor and in that manner received the. injuries of which he complains, 1 say.lie was thrown, off, on the. assumption that that was the. finding of the jury, since the learned trial court charged the jury , in effect that if' the conductor accidentally threw the plaintiff off owing to the crowded Condition of the platform, the fact would not of itself establish negligence on the part of the defendant. The- finding of the jury is abundantly established by the evidence. The'only place the plaintiff could find was on the edge of the rear platform, with his back to the steps, and the plaintiff and several witnesses testified that the conductor’s act in pushing the plaintiff off the car into the str'eet was accompanied by the' expression, Get out of the way.”' • 1 think . the fact that the plaintiff was left lying in the street,-the conductor refusing to stop- the car, although requested to do so by the plaintiff’s wife and' other passengers, is- some indication that the act was-intentional and not accidental. .

While there- is some dispute as to the extent of the plaintiff’s injuries, the evidence fairly establishes. the following facts. The plaintiff was at the time forty-six. years of. age, well 'and healthy. • He was an ordained Adventist preacher. He was confined- to his' bed for six weeks and to'the house for two weeks more. Two of'Ms ribs were broken. ' Both of his legs were injured, as was' also his back and spine,.ás a result of which from the time of the acciden t to the time of the trial,.-nearly, two years, he has had frequent fainting' spells. One of his legs has swollen- so as to require- the use of an elastic protector. The knee joint lias been permanently injured functionally by laceration of the ligaments, and his physician testified that the injury to the spine was permanent. He is suffering from heart trouble which he ascribes to the accident, but of its origin there is no sufficient proof.

The verdict is for the sum of $200.' • It requires no discussion to demonstrate that the verdict is inadequate. If' the plaintiff is entitled to recover at all, he is entitled, to recover compensation.' The sum.of $100 which remains after deducting the physician’s bill is not compensation for the undisputed physical injuries inflicted and for the pain,.Suffering and inconvenience necessarily involved, of the extent of which thé evidence furnishes adequate proof. The order cannot be upheld even on the theory that the plaintiff was not entitled to recover at'all; that is to say, on the theory that the verdict was a compromise in a case where there is reasonable doubt whether the plaintiff has fully established his cause of action.

The.order should be reversed.

Jenks, Hooker, Gaynor and Rich, JJ., concurred.

Order reversed and verdict set aside and new trial granted, costs tó abide the event.  