#### Salvator Aiello, Plaintiff, *v.*Dora Aaron et al., Defendants.

(Supreme Court, New York Trial Term,

January, 1901.)

Negligence — A recovery entitling the plaintiff to more than nominal v damages.

Where an accident to the plaintiff, caused by the negligence oí the defendants, has resulted in his losing his thumb and in his incurring expenses for medical attendance, a verdict in his favor for six cents is unjustifiable and insufficient, as he is entitled to substantial damages.

Motion for a new trial on the ground of the insufficiency of the verdict.

Leventritt & Brennan, for motion.

L. Steekler, opposed.

Gildersleeve, J.

The motion is to set aside a verdict in favor

of the plaintiff for nominal damages, on the ground of insufficiency in the amount awarded. The action is for a personal injury caused by the negligence of the defendants. The plaintiff used a dumbwaiter belonging to defendants, and was injured by reason of the defective condition of the rope. The jury, by their verdict, found that this rope was defective, and that defendants had knowledge, either actual or constructive, of such defection, and were guilty of negligence in the matter. The jury also, by their verdict, found that plaintiff was free from contributory negligence. Having, therefore, reached the conclusion that the plaintiff had established a cause of action, the jury were bound to award him reasonable compensation for the injuries that he had sustained. See O’Shea v. McLear, 16 N. Y. St. Repr. 482; Brown v. Foster, 1 App. Div. 578; Smith v. Dittman, 34 N. Y. St. Repr. 303; Kelly v. City of Rochester, 38 id. 797. It is not disputed that plaintiff acted lawfully and properly in his use of the dumb-waiter. It appears from, the evidence, as I recall it, that the plaintiff’s thumb was crushed and mangled, and that he was obliged to have it in part amputated. It is true that there wias something tending to *581show that plaintiff had at first neglected the wound, and that the erysipelas that set in was, or might have been, partly due tc the dirty condition of the plaintiff’s hand and thumb. The fact, however, remains that he lost his thumb, was confined to his bed for a considerable period, and incurred some expenses, having paid at least thirty-five dollars for medical care. It must be said, on the other hand, that the testimony tending to establish the defendants’ negligence was very weak. There was, however, some evidence which, if given credit by the jury, would sustain a verdict in plaintiff’s favor. It seems to me that the preponderance of evidence, upon the character of the rope which held the dumbwaiter, was with the defendants. However, the question of fact presented upon this branch of the case was one for the jury, and the court should not disturb their finding. But, as I have above stated, the jury, having found for the plaintiff, and it appearing that plaintiff had paid at least thirty-five dollars for necessary medical attendance, and had lost the first joint of his thumb, were not warranted in awarding the nominal damages of six cents.

H the plaintiff was entitled to a verdict in his favor, he should have received substantial damages.

Motion for new trial granted.

Motion granted.