#### BAILEY v. ROME, W. & O. R. CO.

(Supreme Court, General Term, Fourth Department.

July, 1894.)

Damases—When Excessive.

In an action for personal injuries, it appeared that amputation of plaintiff’s leg about eight inches below the knee was necessary; that his leg, above the place of amputation, and his arm and face, were cut; that the leg was about four months in healing; that plaintiff suffered pain to the time of trial; that his kneejoint was stiffened; that, before his injury, he received 81.60 a day; and that, since the injury, he had been canvassing, but it did not appear what his earnings were. *Held,*that a verdict for 816,000 was excessive.

Appeal from circuit court, Oneida county.

Action by William D. Bailey against the Rome, Watertown & Ogdensburg Railroad Company. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the judge, defendant appeals.

Affirmed on condition.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.

A. M. Beardsley, for appellant.

Scripture & Backus, for respondent.

MARTIN, J.

This is the fourth time this case has been before us. Upon the first appeal, it was held by this court that the evidence was insufficient to justify the submission to the jury of the question of the defendant’s negligence. 3 N. Y. Supp. 585. When here upon the second appeal, the doctrine of the former decision was adhered to, and it was also held that the trial court erred in admitting the opinion of witnesses as to the capacity of a brakeman to displace the brake rod when the pin was in, and whether the pin could have been lost out between Norwood and De Kalb. 8 N. Y. Supp. 780. Upon a subsequent retrial of the case, the plaintiff was nonsuited, and a judgment was entered thereon, from which a third appeal was taken. Upon that appeal the judgment was affirmed by this court (14 N. Y. Supp. 944), and an appeal taken to the court of appeals (34 N. E. 918). That court, in considering the case, held that the trial court erred in rejecting evidence as to defects in other cars of the train besides that which occasioned the plaintiff’s injury, and was “unwilling to say * * * that there was no evidence from which a just inference might not be drawn by the jury, that the defective condition of the brake existed when the car left Norwood, and that there was a negligent failure to discover it at that point,” and held that under the proof, as it then stood, the question of the defendant’s negligence was a question of fact, and should *817have been submitted to the jury. When we examine the evidence-given on the last trial, we find no such change in it as would justify us in holding differently upon that question. We are also of the opinion that the question whether the plaintiff was free from contributory negligence was a question of fact for the jury, and that the court of appeals, by its former decision, impliedly so held, or no new trial would have been granted.

The appellant contends that a new trial should be granted on the ground that the verdict is against the weight of evidence. It might perhaps be assumed from our former decisions in this case-that we have heretofore considered the plaintiff’s evidence as insufficient to entitle him to recover; but, as the court of appeals has held! otherwise, we not only feel bound by the decision of that court, but are of the opinion that after four trials of the case, in which three juries have found for the plaintiff, this litigation should end, and no-new trial should be granted upon this ground.

This leads to the consideration of the appellant’s claim that the damages are excessive. The jury awarded the plaintiff $16,000. The evidence discloses that the plaintiff’s leg was injured to an extent requiring its amputation about eight inches below the knee; that his right arm, lip, and leg (above where it was amputated) were cut (the lip, so that two stitches were taken in it; and the leg, from the place of amputation to his body); that it was about three weeks before he could get around any; and that the leg healed up in about four months. The plaintiff testified that he suffered pain from this injury down to the time of the trial. It also appeared that his knee joint was stiffened. Before his injury the plaintiff received $1.60 a day. On the trial he testified: “Am now a canvasser, and have been a little while. * * * I have been canvassing, collecting, and delivering all the while.” Whether the employment in which he has been engaged since his- injury was more or less remunerative than his employment as brakeman does not appear. It is perhaps to be presumed that, if it had been less so, that fact would have been proved. But, be that as it may, we are of the opinion that the damages awarded in this case are excessive, and that the trial court erred in refusing to grant a new trial on that ground. It seems to us quite clear that the jury, in rendering this verdict, must have been controlled by prejudice, passion, or some other improper influence, and not by that cool, unprejudiced, and unbiased judgment that should have governed its determination. That it may have resulted from improper and inflammatory remarks addressed to the jury by the counsel for the plaintiff may, perhaps, be inferred from the charge of the court, as it will be seen that the remarks of counsel were of such a character that the court felt constrained to express its regret that the counsel for the plaintiff should have made improper remarks to the jury, and to charge it that it should not be influenced by what he said. On the two previous trials, where the plaintiff obtained a verdict, the verdicts were, respectively, for eight and ten thousand dollars. If the plaintiff is permitted to hold this judgment, and recovers the amount of it, the annual interest upon it would be $960, while, at the time of his *818injury, he was able to earn only about $500 a year. Thus, the effect of this judgment is to award to the plaintiff an income during his life which is nearly double the amount he was able to earn, and still leave the principal unexpended; and this, too, although he is able to labor, and perhaps earn as much as before the injury. While recognizing the fact that this was a question for the jury, and that its verdict,should not be disturbed unless there is reason to believe that the jury has been swayed or misled by improper influences, yet it seems to us so clear that this' verdict was the result of such influences, instead of being the result of the calm and unprejudiced judgment of 12 intelligent and fair-minded jurors, that we feel it to be our duty to grant a new trial on the ground that the damages were excessive, unless the plaintiff will stipulate to reduce the amount of the verdict to the sum of $9,000, which, to ns, seems a liberal award for the plaintiff’s injuries. Several cases have been cited by the respondent’s counsel where large verdicts have been sustained, but, as the facts in each case are unlike those before us, but little aid can be derived from an examination of them. In Coppins v. Railroad Co., 48 Hun, 292, affirmed 122 N. Y. 557, 25 N. E. 915, where the verdict was for $15,000, it was by this court reduced to $7,000; and the presiding justice, in delivering the opinion in that case, examined many of the cases cited by the respondent, and fully stated the principle of the authorities governing this question, so that a detailed examination of cases, or of the principles applicable to it, would seem to be unnecessary. These considerations lead us to the conclusion that the judgment and order should be reversed on the ground that the damages are excessive, unless the plaintiff will stipulate to reduce the verdict to the sum of $9,000.

Judgment and order reversed on the ground that the damages are excessive, and a new trial granted, on payment of the costs of the trial by the appellant, unless the plaintiff shall stipulate to reduce the verdict for damages to the sum of $9,000, in which event the verdict and judgment, as so modified, are affirmed, without costs to either party. All concur.