Opinion
May 8, 1908.
Anthony J. Ernest, for the appellant.
Theodore H. Friend, for the respondent.
In the afternoon of October 5, 1905, at about half-past three o'clock, the plaintiff was driving in One Hundred and Seventy-ninth street near Webster avenue, in the city of New York. As he was crossing Webster avenue from the westerly to the easterly side of One Hundred and Seventy-ninth street he saw a car approaching from the north about 175 feet away. While crossing the track plaintiff saw the approaching car and tried to increase the speed of his horse to avoid an accident, but before he got across the car struck the right hind wheel of his buggy about on the hub. The plaintiff was thrown out of the buggy, the buggy was smashed and the plaintiff was injured. The plaintiff testified that he heard no gong sound, but that seems to be immaterial, as he saw the car when it was 175 feet away; that as the car was approaching he could see the motorman's head turned in the opposite direction, and as the plaintiff yelled to his horse the man first turned around to look in front of him in the direction in which the car was going; that the motorman did not increase or decrease his speed from the time that the plaintiff started to cross the track, but it seemed to the plaintiff that he was in conversation with the conductor on the rear of the car. Another witness testified that when he first saw the plaintiff his horse was over the track and the car was at that time about 100 feet away going at what the witness called "a pretty lively speed," and the car hit the buggy before it got across. The defendant introduced evidence tending to show that the plaintiff was guilty of contributory negligence and that the defendant was not guilty of negligence; the case was submitted to the jury by a charge to which there was no exception and the court ordered a sealed verdict. The following morning the jury returned a sealed verdict for the plaintiff for seventy-five dollars. The plaintiff moved to set aside the verdict and for a new trial upon the ground that the verdict was inadequate, whereupon the court stated to the jury that seventy-five dollars was not sufficient; that if they found that the defendant was liable it became their duty to give the plaintiff reasonable and substantial damages and directed them to retire and further consider the amount of damages to be awarded to the plaintiff. To this the defendant excepted, and after the jury had retired for further deliberation, counsel for the defendant asked that the jury be recalled and that they be instructed that they are still a deliberative body and can bring in a verdict for the defendant. In reply the court stated that the defendant's counsel should have made that request before the jury retired, to which the defendant excepted The jury subsequently rendered a verdict for the plaintiff for seven hundred and fifty dollars. The defendant objected to the verdict upon the ground that the jury had completed their labors and reduced their finding to writing and then separated and they could no longer then act as a jury; and he then moved upon that ground and others that the verdict be set aside, and that the verdict for seventy-five dollars be received as the verdict in the case. That motion was denied and the defendant excepted. If the court had set aside the verdict and granted a new trial upon the ground that the verdict was inadequate I should not have disagreed, but the question presented is whether or not the court, in a case where the damages are inadequate and where the jury have assessed the damages, can hold as a matter of law that the damages were not adequate and instruct the jury to retire and further consider the case, and that they must give to the plaintiff reasonable and adequate compensation. I adhere to the view expressed in Douglas v. Met. St. R. Co. ( 119 App. Div. 203), that where the jury have determined that the plaintiff is entitled to recover and have fixed the damages at an amount which to the court seems inadequate, the court has the power to instruct the jury to reconsider the question as to the amount of damages, but the question as to the amount to be awarded must be left to the jury, without instruction as to the amount of the verdict, and it was error to instruct the jury that seventy-five dollars was not sufficient and that they must bring in a verdict for a larger amount than that first determined upon. I think, therefore, that a new trial should be granted, unless the plaintiff consents to reduce the verdict to seventy-five dollars, in which case the plaintiff will be entitled to judgment for that amount.
There was evidence that the car was far enough away when the plaintiff started to cross the track to enable the motorman, if he was attending to his business, to slow up so as to allow the plaintiff to cross in safety; and that coupled with plaintiff's testimony that the motorman was engaged in conversation with the conductor of the car, is evidence to justify the jury in finding the defendant negligent. The jury were also justified in finding the plaintiff free from contributory negligence.
The judgment should be reversed and a new trial ordered, with costs to the successful party by the final judgment, unless the plaintiff stipulates to reduce as aforesaid, in which case the judgment is directed on the verdict for seventy-five dollars, without costs on this appeal.
HOUGHTON, J., concurred.
Adhering to the views expressed by me in Douglas v. Met. St. R. Co. ( 119 App. Div. 203) I concur in result.
LAUGHLIN, J., concurred with CLARKE, J.; SCOTT, J., dissented.
Judgment and order reversed, with costs to abide event, unless plaintiff stipulates as indicated in opinion, in which event judgment as modified and order affirmed, without costs. Settle order on notice.