854
FEDERAL REPORTER.
·
execution of thecontract,with defendant's knowledge, the power was not revocable,at least in respect to those cases inwhioh the plaintiff had rendered Slltvice. Whether it was in view of the allegationthat the defendant stipulated that toe plaintiff's service should be exclusive of any interierence in that territory, it· is not necessary to determine. Perhaps the contract and the power were alike irrevocable from their date if the plaintiff. at that time gave notice to the defendant of his acceptance of the offer 01' promise. Probably the latter is correct. 3. ItWl;\S necessary that the plaintiff should, within a reasonable time, either have .expressly notified the defendant of his acceptance, or have entered upon the performance of the undertaking and given notice thereof to the defendant. The contract alleged in the declaration is wholly unilateral, and continued so until acceptance, either expressed, or implied from entering upon the service with the knowledge of the defendant. The declaration is faulty in this . 4. It is alleged that the defendant assigne\l his patent and "all interests acquired thereunder" to another without the of this plaintiff, and without providing for payment of plaintiff. The court is inclined to hold that this disabled the defendant from doing those things in respect of his contract with the plaintiff,-ifthe contract was closed by acceptance, -which are fairly implied frum the contract, and p'utsuch obstruction in the way:Of ltsexecution, as to justify the plaintiff in treating it as repudiated by the wrongful act of the defendant. But as the demurrer. is sust&ined;on other grounds, no definite opinion is now declared. 5. In reapeot to the objection that the allegeJ contraot was within the statute of frauds, a.nd 80 should have been alleged to be in writing, the ruling is that this question is not before the court. It is not necessary to allege that it was in writing, but only that the contract was made. The point'canotlly arise llponan offer of testimony, where the deolaration does nothllege it was by parol. The demurrer must be sustained. Leave will be given to plaintiff to amend his declaration, otherwise there must be judgment for the de-. fendant.
WUNDERLICH fl. MAYOR,
ETC.,
OF NEW
YORX.
(Circuit Court, B.D. New York. Februarv 18,1888.) 1. Mm«cn,>AL ,CORPORATIONS-NEGLIGENCE-DEFECTIVE I
In an actionfor personal injury, received on the streets of the defendant city, testlmljny was admitted, against the objection of plaintiff, on the point of due,care o·f the streets, tending to show that defendant had about 1i48 milell ofstreets,alld 845 miles of sidewa,lk. Held, that as the verdict of the jury wasin favor of 'the plaintiff, the admission of such evidence did not prejudice him. In an action for personal injury a judgment of $300 will not be set asideaa when Its injustice is not apparent to everyone, damages beint{ peculiarly within the province of the jury. '. . " ,'.
STREETS-EvIDENCE.
I.
DAMAGI£S-INADEQUAcY-PE'RSQNAL INJURIES.
WUNDERLICH V. CITY, OF NEW YORK.
855
At Law. On motion for new trial. This action was brought by Otto Wunderlich against the city of New York, to recover damages for personal injury on the street of defendant city. J udgInent for plairitiff for $300. Plaintiff moves for new trial. L. Laflin KeUogg, for plaintiff., David J. Dean, for defendant. WHEELER, J. This action was brought to recover damages for personal injuries received by the plaintiff in consequence of being thrown from bis wagon by a hole in West street. The plaintiff's evidence tended toehow that he received a severe contusion of the hip by the fall from his wagon, which affected his nervous system, snd confined him to his bed most of the time, and kept him under a doctor's care for about three weeks; that he had not fully recovered, and the disability and suffering were 'likely to be permanent. The evidence of the defendant tended to show that the injury was not probably permanent; and, against an objection of the plaintiff, that the defendant hoo about 548 miles of streets, and 845 miles'of sidewalk, to take care of. The jury returned a verdict for the plaintiff for $300 damages. " The plaintiff has moved. for a Dew trial because of the admission of that evidence, and the smallness of the damages.' The testimony objected to was admitted upon the point of due care of the streets,' on the authority of Reed v. Mayor, 31 Hun, 312. If the ruling was wrong it did not'prejudice the plaintiff, for the finding of the jury on that point was in his ,favor. The verdict cannot, therefore, properly· be set aside 'on account of that ruling, ' There was, no measure of damages laid before the jury by pr()of entitling the plliinti:ff to any exact, or nearly exact, Bum. It all Liyin the sound discretiou'andjudgment of thejury; and they were so instructed. Their duty was to award more or less, as they should find the injury more or less sevNe and, permanent. Some might think, upon the evidence,' that' it was slight; and others that it was quite severe. The amount of theda:mageawlls peculiarly within the province of the jury, and their finding on that subject should not be disturbed, unless, as was said by C. J., in COleman v. Southwick, 9 Johns. 45, it was so ,outrageQus aaitostrike everyone with its enormity and injustice. Leed8 v. Ga&-Light'(Jo., 90 N. Y. 27; Hayward v. Newtl:m, Strange, 940; Barker v. DWie, Id.1051; Taunton v. Smith, 9 Pick. 11. That is not.80 in thill case. Motion· for new trial denied.
856
KELLEY '11. PENNSYLVANIA
R.
CO. I
(Olrouit Court, S·.D. NfIUJ York.
February 10, 1886.)
1.
In an action against a railroad company by an employe for injuries received while in its service, the jury returned a verdict for the defendant, and at the '. s8ln&:ti;me'the foreman handed the clerk a paper, signed by him, stating that . the jqrY.:VY0uld recommend. the defendant to reiQ1burse the plaintiff for expens'e and loss of time caused 'by the accident. There was nothing but mere outside 'statementir of the· jurol'll to show that the 'agreement to recommend infiuencedthem in, finding their/verdict. Held not such misconduct as would aside the verdict, stlltements of jurors not being admissible to .show misconduct by them; · SAME-VERDICT CONTRARY TO' EVIDENCE. "In anaction:against a railroad company for injuries received from· being caught between two vessels, some of the evidence tended to show that was caused by the acts of defeil<lant's servants, and some that it was caused by the motion of the tide. Upon 'a ·former trial the jury had' disagreed: Held, that the verdict for defendlilD.t: was not so manifestly against of the !lvidence as to warrant setting it aside.
NEW TRIAL-MISCONDUCT OF JURy-RECOMMENDATION BY JURY.
At Law.
HermanS! for plaintiff. Osborn E. Bright, for defendant.
01;1 motion for.new trial·. .
WHEELER, J. This acti()n.was brought to reGover for personal injuries received by tpe plaintiff from· being caught between two vessels belonging to the defendant, while assisting in pushing one past the other in a slirpbelonging to the defendant, when in its employ. The plaintiff's evidence tended to show that another of the defendant's vessels was run against the one he was pushing,· and caused the injury to him. The defendant's evidence tended to show that it was not, and that the injury was ca.used ,by the. motion of the waters given by the tide, and by passing vessels. The defendantaalso claimed that those in charge of the other vessel were of the plaintiff, and that, if the:r did run the other vessel against .the one he was pushing"he would be' barred from recovering of the defendant for any damage thereby .caused on thataccounk i' The jury were instructed that the captain and crew of the {lther ,vesseI,employed for a purp'ose independent of that in which .tbeplaintiff was engaged, would not so be fellow-servants of the plaintiff that he could not recover of the defendant for injuries done to him by its being carelessly or negligently run against the one on which he was emplayed, and the question whether it was so run against the one that he was on, to his injury, without his fault, was submitted to the jury in a manner to which his counsel took no exception. The jury returned a verdict for the defendant, and, at the same time, the foreman handed to the clerk a paper signed by him stating that the jury would recommend to the Pennsylvania Railroad Company that the plaintiff be reimbursed for the expenses incurred, and loss of time caused, by the accident while in their employ. This paper was handed to the counsel of the defend-