#### Annie C. Ryan, Respondent, *against*The Knickerbocker Steam-boat Company, Appellant.

(Decided February 3d, 1890.)

Plaintiff’s ankle was sprained through defendant’s negligence. She suffered therefrom for nearly three months, her sufferings being aggravated by the imprudent use of the limb before it was fully restored. - In an action to recover for the injury, the court instructed the jury that the increased or protracted suffering caused by the improper use of the limb must be considered in mitigation of the damages to be awarded. *Held,*that a verdict of $750 should not be set aside as excessive.

Appeal from a judgment of this court entered on the verdict of.a jury and from an order denying a motion for a new trial.

The facts are stated in the opinion.

*A.*Simis, Jr., for appellant.

*Alfred*Steckler, for respondent.

Bischoff, J.

Plaintiff sued to recover damages for injuries sustained by her through negligence and carelessness on the part of the defendant’s employés in the handling and management of a gang-plank used in landing passengers on defendant’s steamer “ Grand Republic.” The -jury rendered a verdict in favor of plaintiff for $750. Defendant thereupon moved, on the minutes and the grounds specified in section 999 of the Code of Civil Procedure, that the verdict be set aside and a new trial ordered. This motion was denied and defendant duly excepted. No other exceptions appear in the case, and on the argument of the appeal, the only ground for reversal urged by appellant’s counsel was that the damages awarded are excessive.

On the trial it appeared from plaintiff’s testimony that for *521nearly three months from the time of the accident she suffered more or less severely from the effects of the injuries sustained. It also appears that she was imprudent in the use of the injured limb before it was completely restored, and that her suffering was thereby aggravated. The trial judge directed the attention of the jury to such alleged imprudence, and instructed them to consider any increased or protracted suffering caused thereby, in mitigation of the damages to be awarded to the plaintiff. In the absence of anything to the contrary, it must be assumed that the judge’s instructions were duly observed.

There is no precise standard by which the amount of damages to be awarded in actions of this nature can be measured, and a motion to set aside a verdict on the ground of ex-cessiveness of the damages awarded is addressed to the sound discretion of the court. Such discretion should, however, only be exercised in favor of the motion when the jury have gone beyond the proper exercise of their function. The power of the jury in fixing the amount of damages to be awarded is circumscribed only by fairness and reason. If the amount awarded is so high as to appear unfair or unreasonable, due consideration having been given to all the circumstances of the case, or if it appears that the jury in fixing the amount were actuated by prejudice or undue influence, it is the duty of the court to interfere. In the absence of such unreasonableness or unfairness, or proof of prejudice or undue influence, the verdict should not be disturbed.

It is unnecessary to cite any authorities to sustain this view. The books abound with them.

There is no proof of prejudice or undue influence in the present case, and the court cannot say that the amount awarded for suffering of nearly three months, duration was unreasonable and unfair, and therefore excessive.

The judgment appealed from should be affirmed, with costs.

Bookstaver, J., concurred.

Judgment affirmed, with costs.