Opinion
November Term, 1900.
Present — Van Brunt, P.J., Rumsey, Ingraham, McLaughlin and Hatch, JJ.
Judgment and order reversed and new trial granted, with costs to appellant to abide event, unless plaintiff stipulate to reduce damages recovered to $2,965, in which case judgment as so reduced and order denying motion for new trial affirmed, without costs.
The plaintiff had a verdict for $4,965 for personal injuries sustained by reason of defendant's negligence. After a careful consideration of the record before us we find no error sufficient to call for a reversal of this judgment, but we think the sum awarded is largely in excess of the damages sustained by him. The evidence introduced upon the trial does not show that his injuries have affected or will affect to any great extent his earning capacity. Prior to the injury he received thirty-five dollars per week, and subsequent thereto he received forty dollars per week, and it was further made to appear by the evidence that the injuries were such that they only prevented him from performing his accustomed work for a few weeks. Under such circumstances we think a verdict of $4,965 ought not to stand. Therefore the judgment and order denying the motion for a new trial are reversed and a new trial is granted, with costs to the appellant to abide the event, unless the plaintiff shall stipulate to reduce the damages recovered to $2,965, and, if such reduction be made, then the judgment as thus reduced and the order denying the motion for a new trial are affirmed, without costs to either party.