This action has been tried twice. Upon the first trial the jury found a verdict in favor of the plaintiff for $1,000, which on motion of the plaintiff was set aside and a new trial granted- on the ground that the damages were inadequate. The plaintiff, a young man of twenty-eight, who was earning twenty dollars per month, with his board, washing, etc., was run over by one of defendant’s cars, resulting in the amputation of one of his legs just below the knee. After being idle about one year the plaintiff was again at work, earning about five dollars per month, in addition to his board and washing, and the learned court, at Trial Term, very properly, we believe, set the verdict aside as inadequate. Certainly if the defendant was responsible for the injury the sum of $1,000 was entirely inadequate to compensate him for the suffering and the loss of earning power' which resulted, and the verdict must have been arrived at, not from a consideration of the evidence, but from a spirit of compromise, which denied to the plaintiff substantial justice. We are of opinion that the order appealed from should be affirmed.*
In the meantime the case has been tried a second time, resulting in a verdict for $7,000, and from the judgment entered, and from an order denying a motion for a new trial, appeal comes to this ■court. The appellant urges that no negligence was shown on the part of the defendant’s driver, but an examination of the evidence convinces us that it is sufficient to support the verdict of the jury upon this point. The theory of the case which must have been accepted by the jury was that the plaintiff, with several companions who had been upon a successful fishing excursion, boarded one of the cars of the defendant, bound north on First avenue, the plaintiff taking a position on the front platform. The car was full, or at least there were no vacant seats inside of the car, and the plaintiff, carrying seventeen fish, weighing about one pound each, was upon the front platform with six other men, including the driver, some ■of them being obliged to stand upon the steps and to hold onto the bars or rails provided for that purpose. While in this position the conductor collected the fares, and the plaintiff stood'with his right *562hand holding onto, the “grab-handle,” as it is described■ in the tes-. timony, while the "other was used to hold the fish which were carried on a string thrown over his shoulder. While the car was passing up a grade, and when nearing the summit, the driver struck the horses, a spirited team, with the whip, the car was started with a sudden, jerk, the plaintiff’s hold upon the grab-handle was broken and he was thrown out upon the street in such a manner that he was dragged under the car and run over, resulting in the crushing ot one of his legs so that amputation below the knee was necessary. The appellant insists that it is not negligence as matter of law to use a whip upon horses used in drawing street cars, and we quite agree with this proposition, but we are persuaded that under, the circumstances detailed by the- plaintiff and his witnesses the jury might properly determine, as a matter of fact, that with the platform loaded as this one Was, and with a spirited team to handle, the defendant’s driver was not justified in striking the horses without giving warning, and that he was guilty of negligence in so doing.
It is difficult to distinguish this case from that of Nolan v. Brookslyn City & Newtown R. R. Co. (87 N. Y. 63) except in points which are not favorable to the defendant, in the present action; and the case having been submitted to the jury upon a-conflict of evidence, and the trial court, with the parties before it, having refused to grant a new trial, we are not disposed to interfere.
We find no reversible error in the admission of evidence upon cross-examination, and the verdict for $7,000 is not so far excessive as to warrant the conclusion that the jury was actuated by improper-motives in reaching its conclusion.
The judgment and order should be modified by deducting therefrom the costs and disbursements of the first trial, which should have been imposed on setting aside the first verdict on plaintiff’s motion, and as thus modified affirmed, without costs.
All concurred, except Jenks, J., dissenting.
Judgment and order modified, by deducting therefrom the costs and. disbursements of the first trial, which should have been -imposed on setting aside the'first verdict oh plaintiff’s motion, and as thus modified affirmed; without costs.
See, for this appeal and decision, post, p. 620.