Opinion
April, 1900.
Robinson Little, for appellant.
House, Grossman Vorhaus (Lewis J. Vorhaus and Joseph Fischer, of counsel), for respondent.
The action is brought to recover damages for personal injuries sustained by the plaintiff by reason of the carelessness and negligence of the defendant and the failure to give the plaintiff a reasonable opportunity to alight from one of its cars on which the plaintiff was a passenger. On June 17, 1898, the plaintiff was a passenger on a north-bound Lexington avenue car operated by the defendant. She was accompanied by her daughter. As the car approached Sixty-seventh street in the city of New York, they signalled the conductor to stop, and in response to this signal the car came to a standstill at a point beyond Sixty-seventh street. On behalf of the plaintiff it was claimed that her daughter then alighted and the plaintiff got hold of the stanchion at the side of the car, which was an open car, and was in the act of alighting, with one foot on the running-board and about to place the other upon the ground; that the car suddenly started up, jolting and throwing the plaintiff to the ground, and as a result of which the plaintiff sustained injuries, to recover for which this action is brought. On behalf of the defendant it was claimed that the plaintiff preceded her daughter in alighting from the car and attempted to alight therefrom before the car came to a full stop. Upon this conflict in the evidence, and without any motion being made on defendant's behalf to dismiss the complaint or for a direction in its favor at the close of the case, the trial justice, in a fair and impartial charge, to which no exception was made, submitted the question in issue to the jury for its determination, who found for the plaintiff. Upon this appeal the defendant claims that the plaintiff failed to make out a case by the preponderance of evidence and that the verdict was excessive. After a careful review of all the testimony, we are of opinion that the case was properly submitted to the jury and that their verdict is sustained by the evidence. The jury awarded $750 damages, and this sum is not excessive. The plaintiff was thrown to the ground and struck on her shoulder, side and knee. She was assisted to her feet by her daughter and a policeman, and went to the hospital, where she was treated, and the treatment was continued by her physician; her body was bruised, her neck stiffened and her left arm disabled, and the stiffness of her neck and the disability of her arm continued up to the time of the trial. The plaintiff was, at the time of the accident, engaged in business as a milliner and fancy sewer, earning on an average $7 a week, and has been compelled by reason of her injuries to discontinue this occupation, she being left-handed and unable to hold the scissors or a piece of work, owing to the numbness of her arm. Her physician testified as to the contusions, tenderness and soreness which he found the day following the accident, and more particularly pointed to the injury to her left shoulder joint, a serious sprain due to rupture of the bursa, and a tearing of the muscles and tendons around the joint. Owing to this sprain the motion of the arm is limited and is accompanied with considerable pain. There has been some improvement, but at times the suffering is aggravated. The sprain is not such a one as could be cured in a short time, and the plaintiff was still suffering from it at the time of the trial.
Although not called to our attention by the appellant's brief, we have examined the exceptions taken during the trial and found them to be without merit, so far as to enforce a reversal.
The judgment and order appealed from should be affirmed, with costs.
HASCALL and McCARTHY, JJ., concur.
Judgment and order affirmed, with costs.