In this case, there was a verdict for plaintiff for $125. The evidence in the case makes it manifest that if he was entitled to a verdict at all, he was actually damaged in a much greater sum. On his motion a new trial was granted on the ground that the verdict was against the evidence and contrary to the charge of the judge.
The first objection taken on this appeal is that the case shows that the plaintiff was not entitled to any ver*337diet at all. This is not well founded, if we could consider such an objection. There was evidence that the defendant was negligent, and also that the plaintiff was not guilty of negligence.
The other objection is that the new trial should have been granted upon the defendants paying costs. This is not so, if the verdict was against the judge’s charge. For then the plaintiff was not in fault in not seeing that the jury was properly instructed (Robbins v. Hudson R. R. R. Co., 7 Bosw. 1). In this case, the jury, instead of looking to the evidence, as they were instructed to do by the court, to ascertain the damages, disregarded that instruction, and gave a .verdict at variance with the evidence.
The order appealed from is affirmed, with costs.
Monell and Curtis, JJ., concurred.