#### SWAN v. LONG ISLAND R. CO.

(Supreme Court, General Term, First Department.

June 15, 1894.)

Damages—When Excessive—Personal Injuries.

A verdict for $12,500 for an injury to plaintiff’s leg is excessive where it appears that plaintiff’s employer paid him the same salary as before the accident, though it appears that he expended about $650 for medicine and medical attendance; that he was obliged to spend five weeks out of the city; that he used a crutch for eight weeks, and at the time of the trial was still using a cane.

Appeal from circuit court, New York county.

Action by Edward H. Swan, Jr., against the Long Island Railroad Company. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Reversed.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.

Wm. C. Beecher, for appellant.

Wilhelmus Mynderse, for respondent.

PARKER, J.

The evidence fully justified the court in submitting to the jury the question of defendant’s negligence. They not only found that the injury to the plaintiff was wholly due to defendant’s neglect, but that he had sustained damages in the sum of $12,500. It appears that since the injury, plaintiff has expended $200 for medicine, and about $450 for medical attendance; that it was over five weeks after the accident before he was able to return to the city; and that thereafter he used a crutch for a period of • eight weeks, and still continues to use a cane. Further inquiry is naturally prompted in respect to the nature of an injury which caused the jury to award the plaintiff damages in a sum which, if invested at the rate of 5 per cent., would produce an income of $625 a year during his life, and leave the principal intact for those dependent upon him; a yearly income equal to 25 per cent, of that resulting from his labor both before and since the accident,—for his employers continue to pay him the same salary as before. Dr. Steinzig, who dressed the wound immediately after the injury, testified:

> “In other words, the leg was black and blue from a point a little above the knee joint to a point a little below,—about five inches,—and under the knre there was a slight cut of the skin. Couldn’t say how deep this cut was under the knee joint. I couldn’t say whether it was anything more than a superficial cutting away of the skin. I don’t think it was more than a quarter of an inch wide. I should think it was an inch long. It was not a cut. It was more of a tear; not a clean cut. There was no bone broken, no muscle cut, no cord cut, and no vein or artery cut, that I could see.”

The other physician called by the plaintiff said that “one of the principal nerves of the limb had received contusion, as shown by. an examination of the parts beneath it; that is, of impaired sensibility,”—for which he prescribed tonics, electricity, and that the patient go into the country. The plaintiff explained how the in*338jury had kept him from lawn tennis, boating, and athletics generally, and described quite fully the severity of the pain which he had suffered, and was still suffering. The doctor gave him such support as he reasonably could in that direction. He said:

> “On examining it, I found that there was a horizontal scar in the ham, about behind the knee. On making extension, very great pain. Q. Could you judge, from your examination, of the cause of his pain, and, if so, in what way, other than by the simple statements of the witness ? A. It is different with different patients. In Mr. Swan’s case, Í judged from his character that he knows when he is hurt; and if I press on a certain place, and ho complained of pain, and I press on another place, and he does not complain of pain, I have reason to believe he is not deceiving me. and he had pain over the parts about which he complains when I used the pressure.”

It is quite apparent that Ms answer is not within the definition of “diagnosis” as given by Judge Pinch in the Griswold Case, 115 N. Y. 64, 211ST. E. 726. He said, “at the best, diagnosis is little more than a guess enlightened by experience.” Here we have, so far as the element of pain is involved, a guess enlightened only by the statement of the patient, which ought not to have had, but probably did have, greater weight because reaching the jury through the mouth of the physician. Undoubtedly, the bruise was a severe one, occasioning the plaintiff expense, preventing him, for a time, from working, and effusing him to suffer severe pain. But the results flowing from it did not' justify, as we think, an award to the plaintiff of $12,500, as compensation for the injury sustained. The judgment should be reversed because the damages are excessive, and a new trial granted, with costs to the appellant, to abide the event. All concur.