Kenney v. City of Utica

228 A.D. 42, 238 N.Y.S. 407, 1930 N.Y. App. Div. LEXIS 12093

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 8, 1930
• Status: Published

Opinion

Edgcomb, J.

This is a companion case, and was tried with Waldron v. City of Utica (228 App. Div. 37), decided herewith. Plaintiff was struck by the same tree which hit Mr. Waldron. The jury returned a verdict for the plaintiff of $4,000, and the trial judge set it aside and granted a new trial, unless the plaintiff stipulated to reduce her award to $2,000. This she refused to do.

Plaintiff was a girl twelve years of age. She was in the hospital three weeks, and was then taken home where she remained one week before she returned to school. She had a compound fracture of the left metacarpal bone, and her skull was fractured. The third' morning after the accident, it was discovered that one eye was turned in. The hearing in her left ear was from one-third to oné-half less acute than in the right ear. While the internal squint of the eye had improved somewhat, Dr. Guile testified that it was permanent. He also said that she would always be deaf. The fracture of the thumb left a deformity in the joint, and resulted in almost a complete fixation or anchylosis of the joint. The jury were justified in finding that the girl was nervous, and that she suffered severe headaches. Before the accident she was a normal child, and her health was good.

With all these injuries we do not think that it can be said that $4,000 was an excessive verdict.

For the reasons stated in our opinion in the Waldron case, we think that the order appealed from should be reversed, and that the verdict should be reinstated.

All concur. Present — Sears, P. J., Crouch, Taylor, Edgcomb and Thompson, JJ.

Order reversed on the facts and verdict reinstated, with costs.