CASES ARGUED AND DETERMINED

IN THE

SUPERIOR COURT

OF THE

CITY OF NEW YORK,

AT GENERAL TERM.

WILLIAM L. ROBBINS, Plaintiff and Appellant v. The Hud SON RIVER RAILROAD COMPANY, Defendants and Respon dents.

1. Where in an action to recover damages for an injury caused by the alleged negligence of the defendant, the jury find for the plaintiff and assess his damages at only six cents; and the uncontradicted evidence is, that the plaintiff was so much injured that he remained insensible through the day; that he did not use his feet, or hardly know that he had any feet for ten or twelve days, and was laid up nearly five months, confined most of the time to his house-the verdict will be set aside as contrary to evidence. 2. Where a verdict is set aside as contrary to evidence and the charge of the judge, the costs of the former trial will be ordered to be costs in the cause and abide the event.

(Before BOSWORTH, Ch. J., and PIERREPONT and MONCRIEF, J. J.) Heard May 15, decided June 2, 1860.

APPEAL by the plaintiff from an order denying a motion for a new trial. The action was tried October 23, 1857, before Mr. Justice SLOSSON and a jury, when a verdict was rendered in favor of the plaintiff for six cents damages.

The action was brought to recover damages for an injury to the plaintiff on the 28th of February, 1854. He was a carman, and on that day went to the defendants' depot in 12th street, New York, to get a load of straw boards

Robbins v. The Hudson River Railroad Company. there piled up in the depot. The straw paper or boards. from which the load was to be procured, was laid up in a pile seven or eight feet high, and bales of hops were piled up in front of it. The bales of hops had to be removed to get at the straw boards. On rolling away the third bale, the paper fell on him and inflicted the injury complained of. The complaint charged that the injury was caused solely by the negligent and improper manner in which the paper was piled. The evidence affecting the point decided, is sufficiently stated in the opinion of the Court.

The Judge charged, among other things, as follows, viz: If the plaintiff is entitled to recover, the only remaining question is as to the amount of damages. The measure of this would be a reasonable compensation for the loss of his time, deducting what he might have earned during that time; also what he has paid or incurred by reason of the injury; and also a compensation for his bodily suffering, and for the loss of bodily power which he has sustained; and from all this you must deduct what he has earned since the injury.

E. C. Benedict, for Appellant.

The Jury have found by their verdict for the plaintiff— I. That there was no negligence on the part of the plaintiff.

II. That there was negligence on the part of the defendants.

III. That his damages were six cents for the following injury: An able-bodied and very healthy man was crushed out of his senses, injured permanently in the small of his back, and in his kidneys. There was a complete paralysis of his lower extremities and of the kidneys, excruciating pain in the small of the back; not yet cured, after three years and a half; not likely to be; has earned all he could get; has not been able to earn $1 a week.

IV. The verdict as to the damages was against the charge of the Court.

Robbins v. The Hudson River Railroad Company.

V. The verdict as to the damages was against the weight of evidence.

T. M. North, for Respondents.

I. The plaintiff should have been non-suited upon his own testimony, and must be, upon the same statements if a new trial is granted. Plaintiff's own negligence was the proximate cause of the injury of which he complains. Defendants' negligence, if any existed, was remote. (Button v. Hud. R. R. Co., 18 N. Y. Rep., 248; Steves v. Syr. and Oswego R. R. Co., Id., 422; 2 Bosworth R., 374.)

Owen v. Hud. R. R. R. Co.,

II. The verdict, though in form for plaintiff, is really for defendants, and is sustained by the evidence which warrants the jury's belief that the plaintiff pulled the piles of paper on to himself, either by removing the hops, if they supported it, or if they did not, then by the jar caused by rolling them over.

III. There is no inadequacy of damages. In cases of this class there is no scale by which the damages are to be graduated with certainty; they admit of no other test than. the intelligence of a jury governed by a sense of justice. This jury probably supposed from the refusal of the court to non-suit, that the plaintiff was entitled to at least nominal damages, and their conviction that his injuries were from his own fault constrained them to give no more; though their sympathies were so strongly on his side that they sought to relieve him from costs.

The court will only interfere on account of inadequacy of damages "when they are so small as to force upon the mind of every man familiar with the circumstances of the case, the conviction that by some means the jury have acted under the influence of a perverted judgment." (Collins v. Alb. and Sch. R. R. Co., 12 Barb. 492; Richards v. Sandford, 2 E. D. Smith, 349.)

That the jury found a verdict for plaintiff with nominal damages, when they should have found a verdict for

Robbins v. The Hudson River Railroad Company. defendants, is no ground for a new trial. (Rundell v. Butler, 10 Wend. 119.)

It is plain that substantial justice has been done in this case, and it is well settled that when a new trial ought to produce the same result, a new trial will not be granted. The court will not against the equity of the case, disturb the verdict upon technical objection.

BY THE COURT. BOSWORTH, Ch. J.-This is an appeal by the plaintiff from an order denying a motion made by him for a new trial.

The action is brought to recover damages for a personal injury to the plaintiff, alleged to have been caused by the defendants. The jury found a verdict for the plaintiff, for six cents damages. The plaintiff was injured on the 28th of February, 1854. He was He was so much injured that he remained insensible through the day, and "was laid up in this city nearly five months, most of the time confined to the house."

Dr. Chapin attended him for three weeks, and testified thus: "I called this a severe injury, so severe that he did not use his feet, or hardly know he had any feet, for ten or twelve days." A person thus injured by the negligence of another, and without fault on his part, is entitled to recover more than six cents damages.

The jury found that he was injured by the defendants' negligence, and the evidence already stated as to the extent of the injury, was not controverted.

The defendants insist that they were entitled to a dismissal of the complaint; that the jury should have found in their favor, and that, substantial justice having been done, a new trial should not be granted, although the verdict is in favor of the plaintiff.

When the plaintiff rested, the defendants moved to dismiss the complaint, on two grounds:

I. Because at the time of the injury the plaintiff was improperly in the defendants' depot; and

II. Because his own negligence caused or directly con