Coulter v. American Merchants Union Express Co.

5 Lans. 67

Opinion

Mullin, P. J.

If the defendant’s driver drove on to the sidewalk, on which the plaintiff was walking, in a rapid manner, and near enough to her to give her reason to deem herself in danger, and if, under this belief, she instinctively jumped against the wall and injured herself, the defendant is liable, and the plaintiff was not chargeable with negligence. (Buel v. N. Y. Central R. R., 31 N. Y., 314.)

This was a question for the jury, and they have decided upon conflicting evidence that the defendant’s driver was, and the plaintiff was not, guilty of negligence.

This disposes of the merits of the case.

.Granting leave to amend, and whether any and what terms should be imposed rests, as a general rule in the discretion of the court, and that discretion cannot be reviewed by the appellate court.

But it seems that this rule is not without its exceptions. One well-established exception is an amendment of the complaint after verdict, increasing the damages claimed in it to the amount of the verdict, unless upon the condition that the plaintiff relinquish the verdict, pay the costs of the trial, and consent to a new trial. (Corning v. Corning, 2 Seld., 97, 105; Dox v. Dey, 3 Wend., 356; Curtiss v. Lawrence, 17 J. R., 111.

The County Court, therefore, had no power to permit the amendment, and the order is reviewable on appeal. (Corning v. Corning, supra.)

In this case the plaintiff should be permitted to enter a remittitur of the damages, and the judgment to stand for the amount claimed in the complaint. But if she does not do so within twenty days after notice of this decision that then the judgment be reversed, and new trial granted. Costs tó abide event.