#### Isabelle Smith, Appellant, *against*Semon Dittman *et al.,*Respondents.

(Decided December 1st, 1890.)

In an action for personal injuries to plaintiff, a woman, from being struck on the head by a bale of cloth, by reason of negligence on the part of defendants, the evidence was that the blow had caused great pain and marked prostration, continuing to the time of the trial, more than three years.after the injury, so that during that time plaintiff had suffered incessant and excruciating pain, and had been unable to rise from a recumbent position,, and was not able to sit up, and had lost much flesh and become very weak; that her. in juries were permanent, and it was *428reasonably certain that her condition would not improve; that, at the time of the injury, she was 20 years of age and in good health; that her expenses on account of the injury amounted to about $3,000, and her loss of earnings to $4 a week. The jury found a verdict for plaintiff for $ 1,000. *Held,*that it should be set aside as inadequate.

In such an action, exclamations of pain by plaintiff, immediately after the injury, are admissible in evidence.

The entry of judgment by a plaintiff on a verdict in his favor, in order to appeal therefrom, is not such an adoption of the verdict as to estop the plaintiff from objecting to it for inadequacy of the damages.

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 action was brought for personal injuries to plaintiff alleged to have been caused by the negligence of defendants. Tire jury found a verdict for plaintiff for $1,000. Plaintiff made a motion for a new trial for inadequacy of damages and on other grounds^ which was denied. Plaintiff thereupon entered judgment on the verdict and appealed from the judgment and from the order denying her motion for a new trial.

*D. M.*Porter, for appellant.

*Austen Gr. Fox,*for respondents.

Pryor, J.

The appeal is by plaintiff from a judgment on a verdict in her favor, and from an order denying a motion for a new trial. The motion was made on the minutes, and “ upon the ground that the verdict is for insufficient damages, and because the verdict is contrary to the law and to- the evidence.”

I am of opinion that the verdict under review involves a miscarriage of justice which it is the duty of the court to correct.

The action is for an injury to the person of the plaintiff, inflicted by the negligence of the defendants. The verdict in plaintiff’s favor is conclusive of the liability of the- defendants, and, being for $1,000, evinces the judgment of the *429jury that the plaintiff was entitled to more than nominal damages.

The injury occurred on the 15tli of January, 1887, and was caused by the fall of a bale of cloth, which hit plaintiff on the head. The blow struck her senseless, and she continued unconscious for some time. She recovered, however, sufficiently to walk, with the support of a friend; and within an hour or two she returned to her home. That night she sent for. a doctor. He was a physician in active practice and of nearly forty years’ professional experience. He had known the plaintiff from her infancy. He testified, not- as an expert upon a supposititious state of facts, but as an actual observer of real facts within the cognizance of his own senses. - Responding to the call, the doctor found the plaintiff “ pallid, excited, supporting her head with her hand.” “ She was in a state of marked prostration, and complained constantly. She complained of pain in her head,, more especially the back part and top of her head; and that has been a frequent symptom, with pain in the front of the head, almost a constant symptom from that time ” (15th of January, 1887), “ to the present ” (18th of June, 1890) ; on the 11th of February, 1887, “ I examined her very carefully, and saw at that length of time the symptoms as I have described them. I found her at that time (11th of February) pallid and already somewhat wasted. She was unable to rise" from her recumbent position, and by great effort she could raise her head about one inch from the pillow; she lies in a dozing state a considerable part of the time, and her eyes are partly open—the eyelids are partly open. When she was aroused she complained, not only of pain in her head, but also in her chest, which I regarded .as neuralgic pain ; and in the abdomen— pain in her bowels ; and at times she had pain in her feet. She has occasional sighing respiration; this a physician understands to be a very important symptom, as indicating an affection of the brain. Her mind was wandering; when I asked her how much one from five left, she said two ; and that two and five made one hundred and fifteen; her mind is wandering; she addresses people in the room that are not *430there; thought she saw people in the room that were not there. These symptoms continued for some days.” On February 15th she exhibited “ continued wasting and emaciation, and loss of power in her muscles, inability to use the muscles as in a state of health. February 14th, she couldn’t rise up on her elbow from a reclining position; still had persistent headache from back part of the head to the forehead; complained also of pain in the spine and left leg. The nerves from the hinder part of the brain extending down here produced this neuralgic pain in her limbs; and I would say, as a symptom I noticed then, which seemed to me quite important, and that is, that the pulse was only fifty-four— sub-normal pulse—the ordinary pulse being seventy-six to seventy-eight. Her pulse was fifty-four, showing some pressure upon the brain, the pneumogastric nerve.”

On the 4th, 19th, 25th, and 28th of March, her symptoms were “ a sensation as if the skin were drawn tightly over the head, constant pain in the forehead and back of the head, although ice-bags were constantly applied; the pain extends along the spine and legs; she has pain in the epigastrium, and nausea ; her appetite had greatly failed, and she could only take a small amount of food in a liquid state; her catamenia, or monthly period, had ceased—it shows a greatly impaired health when that function ceases; she trembles violently when I ask her to extend her leg; she is reclining, with the leg trembling like that with weakness; she has been constantly in the reclining position as you see her (at the trial), except as she is supported in an upright position, and if at any" time she has attempted to walk, she found it necessary to be supported.”

On the 13th of April, 1890,—three years after the hurt— plaintiff was again examined by the witness, and he found that “ she has still this headache, frontal and occipital, daily ; she cannot read even a coarse, ordinary print, without an increase of the headache ; if she attempts to amuse herself in that way, she is obliged to desist; noise and excitement have the same effect; she lost considerable flesh since the injury, probably 30 or 40 pounds; cannot walk, cannot sit *431erect, cannot rise in bed even upon the elbow, cannot raise the weight of eight pounds—I tested her two or three times; her appetite is moderaté—takes two or three meals a day; the bowels are habitually constipated.”

The physician further testified that plaintiff’s injury is permanent ; “that it is reasonably certain that time will not improve her.” No expert was produced to challenge the prognosis of the witness, and to give a more hopeful augury of the event, although plaintiff was attended by a number of the leading physicians of the city. As to her suffering, plaintiff testified that she suffered “ very much; ” that she “suffered excruciating pain for a long time ; ” that she “ suffered all over ; ” that she “ is not now able to sit up.” At the time of her hurt, plaintiff was. 20 years old, and was “ a healthy young woman,” a fact apparent from the photograph in evidence.

Finally, the fact is uncontradicted, that plaintiff’s expenses on account of her injury amount to about $8,000 ; and her loss of earnings to $4 a- week for three years.

Such, in summary, was the evidence, and the uncontradicted evidence too, of plaintiff’s damages from defendants’ wrong; and yet the jury allowed her but $1,000 !

It appears that plaintiff was dependent upon her own labor for a livelihood; and of the ability to earn that livelihood, defendants have totally and permanently deprived her. For three years her sufferings have been incessant and excruciating; and the “ reasonable certainty ” is that they will distress her through life. In the vain quest for some cure or alleviation of her agonies, she has already expended three times tire" amount of money which the jury awarded her in compensation for all the consequences of her injury. In the bloom of early maidenhood she is prostrated by a blow which shatters her body and mind; which bereaves her of all the joy and pride of life; which denies to her the felicities of the marriage relation ; ■ which dooms her, till death shall happily release her, to a bed of helpless anguish; and for this the jury-thought a thousatid dollars an adequate indemnity !

In my judgment the verdict is shocking to reason and to *432the sense of justice; and is unaccountable except on an hypothesis which the law recognizes as a sufficient ground to set it aside.

In *McDonald*v. *Walter*(40 N. Y. 551, 554), the rule is thus propounded by the Court of Appeals : “ A verdict for a grossly inadequate amount stands upon no higher ground, in legal principle, nor in the rules of law or justice, than a verdict for an excessive or extravagant amount. It is doubtless true, that instances of the former occur less frequently, because it is less frequently possible to make it clearly appear that the jury have grossly erred. But, when the case does plainly show such a result, justice as plainly forbids that the plaintiff should be denied what is his due, as that the defendant should pay what he ought not to be charged.”

Again, in *Platz*v. *City of Cohoes*(8 Abb. N. C. 392), an action for personal injury, the Supreme Court hold, that a verdict may be set aside for inadequate damages, and on pages 396, 397, the learned judge says : “I cannot avoid the conviction that great injustice has been done the plaintiff by the verdict. I cannot conscientiously permit this verdict to stand. It is no compensation whatever, for the serious injuries the plaintiff has sustained ” *(Richards*v. Sandford, 2 E. D. Smith 349; *Collins*v. *R. R. Co.,*12 Barb. 492).

I am of opinion, furthermore, that plaintiff is entitled to a new trial for error of £he court in the exclusion -of evidence.

Plaintiff’s counsel propounded this question to a witness : “ What exclamation of pain, if any, did she make ? ” (This was on the return of plaintiff to her home immediately after the injury). Upon objection by defendants’ counsel, the offered testimony was excluded, to which ruling plaintiff’s counsel duly excepted.

Again, the question “ Has she made any exclamation of pain?” was excluded, to which also, plaintiff’s counsel excepted.

The authority cited by defendants to support the ruling is distinctly and decisively against it *(Roche*v. *R. R. Co.,*105 N. Y. 294,298 ; *Hazenlacher*v. *R. R. Co.,*99 N. Y. 136). A story by a plaintiff on the witness stand of the pain he has *433suffered may be suspected as a prepared statement by an interested party to sustain his case ; but of a differen t character and of far greater probative force, are the involuntary cries of nature wrung from the sufferer by the poignancy of present anguish. The offered evidence bore directly on the question of damages; and the court cannot say that its exclusion did not diminish the amount of the verdict.

In disposing of the case, it is not an immaterial consideration that, should a new trial be denied, plaintiff will be remediless—the Court of Appeals having no jurisdiction to review the decision of the question by this court—while, on the other hand, if *a*new trial be granted, defendants will have still another chance before the jury.

Tl^e question suggested by the ingenious counsel for defendants that plaintiff is estopped, by adoption of the verdict, from challenging its validity, might be worthy of consideration, if the facts he recites were before us. But, upon the record, it only appears that plaintiff’s counsel entered judgment—a step necessary to perfect an appeal from it; that he did appeal from it; and that he promptly impugned the verdict for inadequacy of damages and repugnancy to the law and the evidence.

It is unnecessary to discuss the propositions that a party may appeal from an unsatisfactory judgment in his own favor, and may concurrently attack the judgment for error of law by the court, and the verdict for error of fact by the

jury-

The judgment should be reversed and a new trial awarded, costs to abide the event *(Robbins*v. *R. R.*Co., 7 Bosw. 1.)

J. F. Daly, Ch. J., and Bischoff, J., concurred.

Judgment reversed and new trial ordered, with costs to abide event.