McLoughlin v. Brooklyn Heights Railroad

Rich, J.: These appeals are by plaintiffs from a judgment in favor of the defendant in each of the two cases which were tried together. The plaintiffs were passengers on a trolley car operated by the defendant which collided with another of defendant’s cars. The actions are based on the negligence of the defendant in the operation of these ears, and upon the trial the defendant admitted its liability in both eases. The plaintiffs each testified to the injuries received and the attendant consequences; their testimony is corroborated by them physician, and is not contradicted nor are they in any manner impeached. While the plaintiffs may have exaggerated and magnified them injuries, the evidence is such as to. entitle each to recover something by way of damages. (Levine v. Brooklyn, 933 Queens County & Suburban R. R. Co., 134 App. Div. 606.) The judgment and order must be reversed and a new trial granted, costs to abide the event. Hirschberg and Carr, JJ., concurred; Jenks, P. J., and Burr, J., dissented on the ground that the jury was justified in finding that plaintiff sustained no actual damage, and a court will not reverse for the sake of nominal damages. The Levine case, cited in the prevailing opinion, was a nonsuit, and there was uncontradicted evidence of actual damage. In the ease at bar the extent of the injury was disputed. In each case judgment and order reversed and new trial granted, costs to abide the event.