Schmidt v. Interborough Rapid Transit Co.

49 Misc. 255, 97 N.Y.S. 390

Opinion

Scott, J.

The verdict was grossly excessive, due, perhaps, to the erroneous instruction to the jury that, in estimating the plaintiff’s damage, they might fairly consider what they thought would compensate them, under similar cireum.stances, if injured in the same manner. The plaintiff’s injuries were only very slight, and it is not even claimed that they are permanent. His loss by way of wages amounted •only to one week at five dollars and a half a day, and no proof was given or claim made in respect to any physician’s :fee. Counsel for defendant asked the court to charge that it was not negligence as a matter of law tp permit overcrowding, but was a circumstance to be submitted to and •considered by the jury. This was a proper request and should have been charged; and the refusal to do so was not ¡rendered harmless by reading to the jury an excerpt from ¡a judicial opinion, which, read without its context, was ■calculated rather to mislead than to instruct the jury. Ho request was made to charge as to the contributory negligence •of plaintiff in leaving a place of safety, and attempting to .squeeze through the gate before it had been fully opened; and it is not, therefore, necessary to consider that question upon this appeal.

Blanchard and Dowling, JJ., concur.

Judgment reversed and new trial granted, with' costs to ¡appellant to abide event.