Alphonse Fahlbusch, Appellant, v. The Brooklyn Heights Railroad Company, Respondent

Alphonse Fahlbusch, Appellant, v. The Brooklyn Heights Railroad Company, Respondent. Second Department, June 2, 1911. Negligence — damages — inadequate verdict — reversal of judgment. Where in án action for personal injuries it is established by the evidence, viewing it in the light most favorable to defendant, that a bone in plain- • tiff’s ankle was fractured causing a deformity which may tp some extent. ■ ■ be permanent, that it has caused and still causes him severe pain, that because of the accident he was incapacitated for seven weeks, and that at the time of the injury he was well and healthy and earning $14 a week, a verdict for $150 is inadequate. A judgment entered on a verdict in his favor cannot be sustained on the theory that the trial justice may have concluded that the evidence afforded a reasonable doubt as to whether the plaintiff should have had a verdict or that the nominal verdict rendered was in fact one for defendant. Appeal by the plaintiff, Alphonse Fahlbusch, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 1st day of February, 1911, upon the verdict of a jury for $150, and also from an order entered in said clerk’s office the same day as resettled by an order entered on the 2d day of March, 1911 denying the plaintiff’s motion for a new trial made upon, the minutes. ■ Henry M. Dater [George F. Elliott and Jay 8. Jones with him on the brief], for the appellant. D. A. Marsh [George D. Yeomans with him on the brief], for the respondent. [MAJORITY — Rich, J.:] Rich, J.: This appeal is by the plaintiff from a judgment for $150 entered in an action to recover damages for a personal injury caused by the negligence of defendant’s employees in the operation of one of its trolley cars, and from an order denying his motion for a new trial upon the ground of inadequacy of damages. It is conceded by the appellant that the evidence upon the main issues is such that the jury might as readily and justifiably have rendered their verdict for the defendant as for the plaintiff. While there is a sharp conflict of evidence as to the extent of plaintiff’s injuries and the length of time he was incapacitated, viewing the evidence in the light most favorable to the defendant, the following facts are established: The accident occurred on June 28, 1908. The plaintiff is thirty years of age, and was well and healthy prior to that time. The main injury he received was a fracture of the inner malleolus resulting in deformity, a broken arch and an atrophy of certain muscles of the joint, and such results are to . some extent permanent. The plaintiff was incapacitated from work for at least seven weeks, during .the larger portion of which time he was confined to his bed; he had to use crutches, and a cane for some little time after he was able to get around. He suffered intense pain during this period, which continues to some extent to the present time, and is increased by overexertion in standing too long or walking any distance. He was earning fourteen dollars' a. week at the time he was injured, and when able to work returned to the same employer at the same rate of compensation. Deducting plaintiff’s compensation for the seven weeks he was disabled, (ninety-eight dollars) from the recovery, there is left fifty-two dollars to compensate him for the pain and suffering he has endured, his expenses, the déformity of his ankle and the permanent limitation of use of his ankle and foot. It requires no argument to demonstrate the inadequacy of this verdict. If the plaintiff is entitled to recover at all, he is entitled to compensation, which the verdict does not give him. If he is not entitled to recover, the verdict is equally unjust to the defendant. Although, as suggested, the learned trial justice may1 have concluded that the evidence afforded a reasonable doubt as to whether the plaintiff should have had a verdict, or that the nominal verdict rendered was practically and 'in effect a verdict for the defendant, and been governed by such conclusion in denying the motion for .a new trial, this court has held that neither of such conclusions is sufficient to uphold the verdict.' (Milliken v. City of New York, 82 App. Div. 471; Tourtelotte v. Westchester Electric R. Co.,, 120 id. 417.) The amount awarded by the jury is insufficient to compensate the plaintiff for the results of his injury, and a new. trial is essential to the ends of justice. (Hurley v. Metropolitan St. R. Co., 87 App. Div. 66.) , The judgment and. order should be reversed and a new trial granted, with costs to the appellant to abide the event. Jenks, P. J., Thomas, Carr and Woodward, JJ., concurred. Judgment and order reversed and new trial granted, with costs to the appellant to abide the event.