Budalich v. Baltimore & Ohio Railroad

256 A.D. 991, 10 N.Y.S.2d 575

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 13, 1939
• Status: Published

Opinion

In an action brought under the Federal Employers’ LiabiEty Act to recover damages for personal injuries sustained by plaintiff when struck by a die from a compressed air-riveting gun, judgment in favor of plaintiff and order denying motion of defendant-appellant for a new trial unanimously affirmed, with costs. On a former appeal we reversed a judgment in plaintiff’s favor unless plaintiff would stipulate to accept a reduced verdict. (250 App. Div. 786.) Upon his refusal to stipulate, the action was retried. The present verdict, as reduced by the trial court upon plaintiff’s consent, is in an amount greater than that fixed by this court upon the former appeal, but less than the original verdict. The proof of damage was more favorable to the plaintiff upon the second trial. Plaintiff’s principal expert witness testified that the injuries were permanent, which he had not done at the first trial. The jury could have concluded from the testimony of defendant’s chief medical expert that what he called the plaintiff’s “ compensation neurosis ” was an involuntary condition resulting from the accident. The latter witness also became involved in contradictions which could have affected the weight to be given to his testimony. Under the circumstances we are not called upon to disturb the verdict, as presently reduced. Present — ■ Lazansky, P. J., Hagarty, Carswell, Add and Close, JJ.