Pollak v. Metropolitan Street Railway Co. , 58 N.Y.S. 1133 ( 1899 )

Schuchman, J.

This action was brought to recover damages for personal injuries sustained by the plaintiff while a passenger on one of the defendant’s cars, through the defendant’s carelessness and negligence. The defense is a general denial of the plaintiff’s cause of action. The defense, on the trial, offered no evidence whatever, called no witnesses and made no motion to dismiss, but went to the jury purely on the question as to the amount of damages which the plaintiff might be entitled to recover. The jury rendered a verdict of $1,750. This verdict defendant claims to be excessive. We do not agree with its contention, considering the evidence in relation to plaintiff’s injuries, so well recapitulated in respondent’s points. In cases of this class, the question of the measure of damages is the prerogative of the jury to pass upon, and the court on appeal has no right to disturb their conclusion, unless it is in some way made to appear, quite manifestly, that the result was reached through passion, prejudice or corruption. Swoboda v. Met. St. R. Co., 22 Misc. Rep. 8.

Error is claimed by defendants to have been committed by the trial justice in the denial of a “ Motion to strike out the value of the doctor’s services on the ground that it is not recoverable in this action, as it appears that the father of this young lady stands by her still in loco parentis, and the medical service is something that he cannot recover for.” The young lady was over twenty-one years of age at the time of the accident, and was twenty-four years of age at the trial, and was always living with her parents. The doctor had testified that his services were worth $250; that he treated the family, and that these services were billed to the father separately, who paid on and off; that he had not yet been paid that amount; that he believed he was paid nearly all.

The court, in denying the motion, said: “I will deny the motion, but she cannot recover for it here.”

At the close of the case we find that defendant’s counsel moved as follows: “ I will ask you honor to charge the jury that in this case there is no evidence of payments to physicians sufficient for them to give any recovery for medical service.”

“ The Court.— I will so charge; ” and again: “ Defendant’s Counsel.— I also ask your honor to charge that the doctor’s bills are eliminated from this case.”

“ The Court.— I so charge the jury.”

If an error was committed in the denial of said motion, it was surely cured by these subsequent charges. Besides, there i=¡ no evidence in the case from which it can be concluded that the plaintiff could not recover for the medical services rendered to her by the doctor.

Judgment and order appealed from affirmed, with costs.

Comxait and 'Hasoaxl, JJ., concur.

Judgment and order affirmed, with costs.