Keiffert v. Nassau Electric Railroad

51 A.D. 301, 64 N.Y.S. 922

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1900
• Status: Published

Opinion

Hirschberg, J. :

The plaintiff, while driving across Central avenue, in Brooklyn, at the corner of Troutman street, on the afternoon of July 30,1898, was struck by one of the defendant’s cars coming from the direction of Starr street. The collision occurred on the second track reached by the plaintiff as he was turning to the left, away from the approaching car, intending to proceed on Central avenue between the tracks and the curb. The defendant offered no evidence. The plaintiff testified that he looked up and down the tracks before he drove on the first track, and that he also looked in the direction of Starr street before he drove upon the second track. He then saw the car in question four or five houses distant from where he was. It came with unusual speed,, and although he immediately attempted to swing his horses around and off'.the track, he could not. succeed in doing so in time to avoid the collision. He said: “ The car come fast and I got no time no more to get out the tracks. He no stop at all; he no ring no bell, no nothing.” The witnesses agree that the. car was proceeding with more than the ordinary velocity, and that there was neither warning nor an attempt to stop. The case was submitted to the jury under Correct instructions, without any exception, and required the' conclusion reached by them.

The appellant, however, insists that it was error to permit proof of the rate of wages the plaintiff was receiving at. the time of the accident and prior thereto, and that the verdict rendered was excessive.. Neither point is well taken. The complaint alleged that by-reason of his injuries the plaintiff had be’en and would be prevented from attending to his usual vocation, and on the trial he proved.that he had been able to earn 'eleven dollar's a week before the -accident and only nine dollars a -week since. This was proper. (Ehrgott v. Mayor, 96 N. Y. 264, and. cases cited.) I think it would have been proper proof of damages without the allegation, in the complaint, but there can be no question, as to its propriety where inability to attend to the usual business of the plaintiff is specifically asserted. The verdict was $2,500 ; and as it was uncontroverted that the plaintiff sustained a fracture of three ribs, resulting in an adhesion which will permanently limit-'his power of respiration and consequent capacity for labor, it cannot be said that the verdict was excessive.

The judgment and order should be affirmed.

Jenks, J., not sitting.

Judgment and order unanimously , affirmed, with costs.