McMahon v. Walsh

11 Jones & S. 36

• Court: The Superior Court of New York City
• Decided: June 25, 1877
• Status: Published

Opinion

By the Court.—Freedman, J.

—The action proceeded upon defendant’s personal negligence in the control of the operation of the machinery that caused the injury. In such a case the master’s liability to the servant is the same as it would be to one not a servant. Testimony was given on both sides, and the whole case submitted to the jury under a charge which was quite favorable to the defendant, and to which no exception lies. Ho motion was made for the dismissal of the complaint or the direction of a verdict, but the case was treated on the part of the defense thoughout as one which could be disposed of by the jury only. Hor does it appear how upon the evidence it could have been taken from the jury. The judgment therefore should not be disturbed on the ground that the verdict was against the weight of evidence.

Plaintiff’s injuries resulted in the loss of the third finger of the left hand, and it appeared that he was confined ten days in the hospital and subsequently frequently returned there for treatment; that he was compelled to carry his hand in a sling for three months ; that it took eight months to heal, and that ever since that time he was unable to do the same work he was accustomed to, or earn the same wages. Under these circumstances the verdict cannot be deemed excessive.

The judgment and order should be affirmed with costs.

Speir, J., concurred.