Klumpp v. New York Central Railroad

Appellate Division of the Supreme Court of New York

Klumpp v. New York Central Railroad

179 A.D. 279, 166 N.Y.S. 333, 1917 N.Y. App. Div. LEXIS 7376

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 3, 1917

StatusPublished

This text of 179 A.D. 279 (Klumpp v. New York Central Railroad) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Klumpp v. New York Central Railroad, 179 A.D. 279, 166 N.Y.S. 333, 1917 N.Y. App. Div. LEXIS 7376 (N.Y. Ct. App. 1917).

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Opinions

Kruse, P. J.:

1. It seems to me that it is a fair question of fact whether the evidence of the plaintiff or the engineer was the more probable. The mere fact that both were interested, or that the plaintiff may be more interested in the result of the litigation than the engineer, hardly justifies setting aside the verdict as against the weight of the evidence. The jury and the trial judge had the advantage of seeing and hearing both of them, which we have not.

2. As to the charge, I think it very clear that the jury were told that unless the engineer was negligent no recovery could be had. That is the burden of the entire charge, and the plaintiff expressly disclaimed that if the accident were solely due to the catching of his foot in the guard rail, that there could be no recovery, after the refusal so to charge. I think such refusal does not, under the circumstances, constitute reversible error.

3. Neither am I convinced that the verdict is excessive. If it were merely the loss of earnings alone, for which the plaintiff could recover, perhaps the verdict would be too [281]*281large, but the pain and suffering, and the maimed and crippled condition of this active, young and vigorous man should not be lost sight of. The loss of a leg, even if there were no diminution in earnings at all, would in itself warrant a substantial recovery.

All concurred, except De Angelis, J., who dissented in a memorandum.

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Kruse, P. J.:

1. It seems to me that it is a fair question of fact whether the evidence of the plaintiff or the engineer was the more probable. The mere fact that both were interested, or that the plaintiff may be more interested in the result of the litigation than the engineer, hardly justifies setting aside the verdict as against the weight of the evidence. The jury and the trial judge had the advantage of seeing and hearing both of them, which we have not.

2. As to the charge, I think it very clear that the jury were told that unless the engineer was negligent no recovery could be had. That is the burden of the entire charge, and the plaintiff expressly disclaimed that if the accident were solely due to the catching of his foot in the guard rail, that there could be no recovery, after the refusal so to charge. I think such refusal does not, under the circumstances, constitute reversible error.

3. Neither am I convinced that the verdict is excessive. If it were merely the loss of earnings alone, for which the plaintiff could recover, perhaps the verdict would be too [281]*281large, but the pain and suffering, and the maimed and crippled condition of this active, young and vigorous man should not be lost sight of. The loss of a leg, even if there were no diminution in earnings at all, would in itself warrant a substantial recovery.

All concurred, except De Angelis, J., who dissented in a memorandum.

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Bluebook (online)

179 A.D. 279, 166 N.Y.S. 333, 1917 N.Y. App. Div. LEXIS 7376, Counsel Stack Legal Research, https://law.counselstack.com/opinion/klumpp-v-new-york-central-railroad-nyappdiv-1917.