Vail v. Broadway R. R. Co. of Brooklyn. said Augustus Ivins solely or with his associates to organize under an Act of the Legislature entitled 'An Act to authorize the formation of railroad companies and to regulate the same,' passed April 2, 1850, and, in the event of such organization, all the provisions of said last mentioned act, except the number of persons designated in the first section thereof, shall apply to the said grantee and his associates, also except the provisions of section 27 of said act." Section 46 of the Act of 1850, commonly known as the General Railroad Act, reads as follows: "Injuries to passengers on platforms, etc. In case any passenger on any railroad shall be injured while on the platform of a car, or on any baggage, wood or freight car, in violation of the printed regulations of the company posted up at the time in a conspicuous place inside of its passenger cars, then in the train, such company shall not be liable for the injury, provided said company at the time furnished room inside its passenger cars sufficient for the proper accommodation of the passengers." Evidence was offered that there was ample room inside of the car from which plaintiff was thrown, there being but two passengers in it at the time of the accident, and it was also shown on the part of the defendant that certain printed regulations were posted in a conspicuous place inside of the car on which plaintiff was a passenger, and that, among these regulations was one to the effect that passengers were not allowed to ride on the front platform with the driver, and that any passenger breaking this rule did so at his own risk. The learned counsel for the defendant earnestly and ably contends that the defendant having complied with the provisions of this section of the General Railroad Act, it was not responsible for the injuries with the plaintiff sustained while riding on the platform of the car. After a very careful examination of this question, we have come to the conclusion that the defendant's contention cannot be sustained. It seems to us, after perusing these provisions of the General Rail Vail v. Broadway R. R. Co. of Brooklyn. road Act, that the section in question is not applicable to a horse railroad. As was said by the Court of Appeals in the matter of the Washington Street Asylum and Park Railroad Company, etc. (115 N. Y. 442, 447): "Undoubtedly, there are some provisions in the act which can only be applied to railroads where the motive power is steam or some other power than horses, but that furnishes no argument against the application of any of its other sections to horse railroads." We are left, therefore, to determine from the general reading of the section and the context, whether the legislature intended that it should apply exclusively to steam cars or to horse cars as well. Looking at the section in question, it seems to us very plain that it is intended only to "apply to railroads where the motive power is steam or some other power than horses." Reference is made to a passenger riding on the platform of a car or on any baggage, wood or freight car, and the printed regulations are to be posted" in a conspicuous place inside of its passenger cars then in the train." This language and these provisions seem to us clearly to indicate that this section was not intended to apply to horse cars. We cannot overlook the fact that, in our cities, horse cars are crowded night and morning from front to rear, that conductors not only carry passengers on the platforms, without objection or remonstrance, but also collect fares therefrom. It is further a well-known fact that smoking is allowed by the street railroad companies on the front platforms; and in this case plaintiff put in evidence rule 10 of defendant's book of rules and regulations for its employees, conductors and drivers, which is as follows: "Smoking. Smoking on the closed cars is prohibited except on the front platform." It certainly would, in our opinion, be most inequitable to permit this defendant to shield itself from any of its liabilities as a common carrier behind the provisions of the above-quoted section 46 of the General Railroad Act, while, at the same time, it expressly authorizes its drivers Vail v. Broadway R. R. Co. of Brooklyn. and conductors to permit smoking on the front platforms of its cars, and only on its front platforms, to collect fares from its passengers for riding thereon, in short, to enjoy all the benefits of its franchises and to relieve it from all of its obligations as a carrier of passengers in that regard. The verdict for the plaintiff in this case was for $7,500 and the learned counsel for the defendant has very strenuously contended that the amount of damages is excessive, and that this court should exercise the power vested in it and reduce the verdict to what the defendant regards to be a more reasonable sum, and we are referred to Morris v. Eighth Avenue R. R. Co. (68 Hun, 39), as authority for such action on our part. We are unable to follow the conclusions adopted by the majority of the court in that case, and they seem to us to be in conflict with many other authorities on the subject. It has been repeatedly stated that the assessment of damages by a jury is one of the most useful attributes of the jury system, and it has come to be an almost universal rule that courts will not interfere with the verdict of a jury, unless they can perceive that it is the result of passion or prejudice, or reached by an utter disregard of the principles of law that the court has laid down for the jury's guidance in determining the case. The verdict in this case seems to us to be open to no one of these exceptions. It was shown that the injuries which plaintiff sustained were painful, severe and lasting; he was confined to the hospital under surgical treatment for a period of three months, and he is still attended by his surgeon and still suffers great pain; his leg is permanently shortened; he will always be lame, and according to the medical testimony will not be able to stand on his feet all day at any employment, and could really earn his living to better advantage with an artificial foot. In the face of these facts it cannot be said that the interest on the verdict is more than plaintiff's earnings, and therefore the verdict is excessive; to so hold would be to ignore any compensation to the plaintiff Burke v. Burke.' for his pain and suffering, and his being permanently crippled. We are of the opinion that the verdict was not excessive under these circumstances. Even if we thought differently, however, and entertained an opinion that the verdict was a larger one than we ourselves would have awarded if sitting as jurors, that would afford no ground for disturbing the verdict, there being nothing to show that the jury were misled in any way, or were actuated by any improper motive or impulse. None of the exceptions in the case are tenable, nor do they seem to call for any special discussion. We are accordingly of the opinion that the judgment and order appealed from should be affirmed with costs. VAN WYCK, J., concurred. BURKE v. BURKE. N. Y. Superior Court, Special Term; October, 1893. Trials; mode of trial.] Where a complaint set forth the provision of a will directing defendant as executrix to contribute to the support of plaintiff a sufficient sum to keep him from want, in case he was unable to support himself, or was in need, and alleged plaintiff's helplessness and poverty, the refusal of defendant to contribute to his support, and her ability to do so; and demanded judgment that defendant be directed to pay plaintiff the sum of twenty dollars a week, or such reasonable sum as may be proper out of the property in her hands as executrix,Held, that the action was to establish and declare a trust, and not an action for a sum of money only, triable by jury under Code Civ. Pro. § 968.* * Compare Glenn v. Lancaster, 21 Abb. N. C. 272. It is the better opinion that where equitable relief is necessary and properly sought as the means of reaching a judgment for a sum Burke v. Burke. Motion to vacate an order striking a cause from the equity calendar and to restore it to said calendar. Action by Michael Burke against Delia B. Burke individually and as executrix, etc. The facts are fully stated in the opinion. Gilbert D. Lamb, for the motion. W. Bourke Cockran, opposed. GILDERSLEEVE, J.-This is not an action for damages, it is an action to enforce the provisions of a will. The will provides that the defendant, as executrix, shall contribute to the support of plaintiff a sufficient sum to keep him from want in case he is unable to support himself or is in need, and to see that he is properly buried. The complaint sets forth the will and alleges the helplessness and poverty of plaintiff, the refusal of the plaintiff to contribute to his support, her pecuniary ability to do so, and finally the complaint demands that defendant be directed to pay the plaintiff the sum of $20 a week, "or such reasonable sum as may be proper out of the property in her hands as executrix, besides the costs of this action." It is really an action to establish and declare a trust, i. e., to determine what would be a reasonable sum for plaintiff's support and to determine as to its payment. It is true the complaint demands $20 a week, but it adds "or such reasonable sum as may be proper," etc. It does not ask of money, the action is of an equitable nature, and defendant has not by reason of that provision of the Code a right to jury trial. See for instance as to actions for accounting, Ensign v. Nelson, 21 Abb. N. C. 321, aff'd without opinion in 112 N. Y. 674; and Abb. Brief on Pl. p. 95, § 106. As to actions for conditional injunction to enforce payment of damages, see Demorest's Elev. R. Law. As to interpleader on a claim for money only, Clark v. Mosher, 107 N. Y. 118. |