De Noyelles v. Joline

116 N.Y.S. 662

Opinion

PER CURIAM.

Plaintiff, while upon one of defendant’s cars, claims she was struck upon the head by an iron bar attáched to the fare register apparatus, which fell while the conductor was ringing up fares. She proceeded on her journey to a recreation pier, but, feeling pain from the blow, returned home with her child. She says she suffered, called in a doctor, by whom she was treated, and" remained home three days. She is a cleaner in the Evening Post Building, and says that for quite a period she was so incapacitated that she had to have assistance. What her wages were, or what she paid others, does not appear. No claim is made for doctor’s services. Her son, a young boy, corroborated her being struck by this bar, which was of a size to cause injury. Defendant’s conductor testified that the bar fell, but did not strike plaintiff, and that plaintiff did not complain of being struck. The court, without a jury, gave judgment for $250. The evidence justifies some recovery, but we are of opinion that the amount awarded was excessive on the proofs.

The judgment is reversed, and a new trial ordered, with costs to appellant to abide the event, unless the plaintiff stipulates within five days to reduce the recovery by deducting the sum of $125 from the same, leaving her recovery $125 and costs in the court below, but without costs in this court, in which event the judgment, as modified, is affirmed.