if sued on the ground of negligence, may be considered in such case guilty, not of the wrongful act itself, but only of neglect to restrain his servant from committing it." And further that "the soundness of the principle thus stated and the necessity of the rule which we have inherited from the Roman law, have received new and convincing illustrations in the immense development of modern corporations." There is, therefore, no value in the second point. The next error complained of is that the witness, Lizzie Shane, was allowed to testify what the guard stated after the accident, viz., "that he was very sorry he had done it." The objection thus urged arose in the following manner:

Q. What did the guard say in reference to the train, if anything? The counsel for the defendant objected to the question as hearsay and irrelevant.

The court overruled the objection; the counsel for the defendant duly excepted.

That question, however, was not answered, but was followed by this question, namely: Did you see the guard here in court yesterday? To which the answer was, No, sir; I did not see him. This was followed with the question, Did you hear the guard say anything then? To which answer was given in the form of a question, namely: At the time of the accident? (Question.) Yes. (Answer.) He said he was very sorry he had done it. It will be perceived that there was no objection to the question asked, which was: Did you hear the guard say anything at the time of the accident? and which was entirely different from the question previously asked, which was, "What did the guard say in reference to the train, if anything?" This is supposed to be a complete answer to the exception mentioned for three reasons: 1st. As already stated, no objection was made to the question. 2d. That it was wholly immaterial whether the guard was sorry he had done it or not, the liability of the defendant resting upon the fact that the act complained of had been permitted, and that the evidence could not prejudice the defendant in any manner; and 3d, that if this be not so, the declarations of the party in a case like this made at the time and calculated to elucidate and explain the character and quality of the act, and so connected with it as to constitute one transaction and so as to derive credit from the act itself, are admissible in evidence. Waldele v. N. Y. C. & H. R. R. R. Co., 95 N. Y., 274-278.

The next proposition urged on behalf of the appellant is that the learned judge presiding at the trial charged the jury that they could award damages to the plaintiff for future pain and suffering in the absence of any evidence that she was likely to suffer it in the future. A complete answer to this proposition is, that the learned counsel for the appellant is entirely mistaken in supposing that such a charge was made. What the learned judge said was this: "That if they found a verdict in favor of the plaintiff, they should consider the damages which should be allowed to her, 'and then she is entitled to compensation, if from the testimony you find that there is a reasonable certainty that she may suffer in the future from these injuries."

There was nothing, therefore, said about future pain. The propriety of the charge as to the future suffering arises from the fact that Dr. Gaedke testified that "in his estimation, the injuries received by the plaintiff were incurable," which was not contradicted in any way and it may be presumed could not be from the fact that two physicians on behalf of the defendant made an examination of the plaintiff, neither of whom was called upon the trial. And the further fact which the plaintiff had testified to, namely, that she was still under treatment and had done nothing. in the way of work since the accident occurred, which was on the 26th of October, 1887. Under such circumstances the charge was strictly within the rule declared in Feeney v. L. I. R. R. Co., 116 N. Y., 382; 26 N. Y. State Rep., 729, in which the court said: "It may now be regarded as settled that the jury in cases of this character may take into account the pain and suffering which may reasonably be expected in the future, provided evidence has been given tending to show that the person injured will probably experience future pain as a result of the injury." The testimony of Dr. Gaedke, which is as follows, after his statement of his examination of the plaintiff :

"Q. What did you find? A. I had heard previously that there had been an accident. I cannot make a diagnosis without a history of the case.

Q. What did you find? A. I found a blood tumor in the abdomen, a so-called hæmatocele.

"Q. That is called a hæmatoma? A. Yes, sir; that is right. I found the pelvic cellular tissue, which is a fatty cellular substance in the pelvis which surrounds the pelvic organs, was highly inflamed on the right side. That could have been brought about by a recent injury. I think it could by a violent fall. Between the uterus and the rectum I found this hæmetocele, the blood tumor. The uterus was very sensitive and painful, according to the patient's statement of the case. The cellular tissue was infiltrated by the process of inflammation. It was enlarged and inflamed. A violent shock or injury, such as being thrown down, would bring that out. At that time I did not notice any fracture of anything about them. I noticed, I think, about a month after that, a fracture of the so-called coccyx, the last bone of the spine.

"Q. When did you find that that had been fractured? A. I think about a month after that I noticed that. During the time

that I was examining her and treating her, Dr. Leale called. I don't know whether he is the physician for the elevated railway company. I visited Miss Koetter on very frequent occasions, and treated her for the injury that she had at that time, and that she had not had before. At the time that I found the fracture of the lower bone of the spine in the condition that I have described, I made a diagnosis of her case. The injuries, in my estimation, are incurable," contains evidence tending to show that the plaintiff's injuries would probably subject her to future suffering as a result of the injury. This exception to the charge, therefore, cannot be sustained. It is next urged that the verdict is excessive and the

result of the passion or prejudice of the jury, and one of the reasons assigned as establishing the justice of the criticism is that the whole of the plaintiff's case is contained in eight (8) printed pages of the testimony. It is true that that is not the only reason assigned, but it is illustrative of the disposition to treat the plaintiff's case as one of little importance, notwithstanding that the uncontradicted medical evidence shows that her injuries are incurable and that she has been deprived of the power apparently of making a livelihood, and from the time of the accident in 1887 at least down to the time of the trial was still under treatment, and also that from that time to the time of the trial she had been sup ported by the kindness of one friend or more. Under such circumstances, $10,000 substantially paid for a ruined life does not seem to be excessive. If well invested, it would not produce more than $300 a year, although that sum would not be left after payment of the expenses to which her injuries subjected her and the payment also of counsel fees for the prosecution of this action, whatever they may be.

Whatever may be said on the part of the defendant as to the inherent improbability of the plaintiff's story, it must not be forgotten that as to the accident the plaintiff was sustained by the testimony of her companion at the time it occurred, and that the jury, after a charge embracing all the necessary elements, decided that the plaintiff's statement was a correct account of the occurrence. And it must be further said that under all the circumstances disclosed by the record the plaintiff's injury and its results properly considered suggest that such a verdict as was rendered might well be given without passion and without prejudice.

If, however, we resort to authorities, it will be found that: "The general rule is, that the jury are the exclusive judges of the amount of damages, except in those cases where they follow, as a matter of law, from facts proved and the result of a mere computation. In all cases for injuries to the person, to family rights, or to the reputation, the jury are allowed to give what is sometimes termed a round sum. The law prefers the judgment of twelve men in the jury box to the judgment of one man on the judicial bench. It is, therefore, the settled rule, enforced by many decisions, though couched in various forms of expression, that in cases of this character a new trial will not be granted, unless the damages are such as strike every one with the enormity and injustice of them, and such as would induce the court to believe that the jury must have acted from prejudice, partiality or corrup tion." See Thompson on Trials, vol. 2, § 2067, and numerous

cases cited.

It was said by Bockes, J., 8 Hun, 289: "The subject of damages is for the jury, and must be at all times in their discretion and judgment. The court can only interfere on this point when it is apparent that the jury were improperly influenced, or must have acted from passion, prejudice, partiality or corruption. The authority to grant new trials on the ground of excessive damages is undoubted, but its exercise by the courts has been thought equally capricious as has been the verdict of juries. Little aid

can be obtained on this subject by referring to the cases, as will be seen by turning to the opinion of Mr. Justice Hogeboom in the case of Murray v. Hudson R. R. Co., 47 Barb., 196." And in Walker v. Erie R. R. Co., 63 Barb., 267, it was said by Mr. Justice Daniels: "The law has committed the determination of the amount of damages to be awarded to the experience and good sense of the jury, and where the verdict rendered by them may reasonably be presumed to have resulted from an honest and intelligent exercise of judgment upon their part, the policy of the court is, and necessarily must be, not to interfere with their conclusion.'

The judgment should be affirmed, with costs.
VAN BRUNT, P. J., and DANIELS, J., concur.

CHARLES A. BRECK, Resp't, v. FREDERICK A. RINGLER, App'lt. (Supreme Court, General Term, First Department, Filed February 11, 1891.) CONTRACT-SALE OF BUSINESS-LIQUIDATED DAMAGES.

Where one sold to another his entire plant and the good will of a business, and agreed not to engage in the same line of business in any form or manner for five years, and further agreed, in writing, that for any forfeiture or non-compliance with the agreement he would pay a sum stated and which was agreed upon as liquidated damages, Held, that it was clearly the intention of the parties that this sum should, in case of breach, be paid absolutely, and that it was not necessary for plaintiff to show that he had suffered damages to the amount named.

APPEAL from a judgment recovered on the verdict of a jury, and from an order denying a motion for a new trial.

Henry Daily, Jr., for app'lt; Calvin & Breck, for resp't.

DANIELS, J.-This action was brought to recover the sum of $5,000 as liquidated damages for the breach of a contract entered into between these parties on the 19th of March, 1886. By this contract the defendant and his partner, William Kurtz, sold and transferred their business plant, machinery, tools, fixtures, stock on hand, and all appliances used in their business, or connected with it, together with its good will, to the plaintiff, for the sum of $14,000. And the contract by which the sale was made contained the covenant that:

"It is further understood and agreed between the parties hereto, that the said Frederick A. Ringler shall not carry on the same line of business (the good will of which is hereby agreed to be sold to the party of the second part) and shall not be employed by or enter into any partnership with any person or persons in carrying on the same line of business in any way or manner whatever, for the term of five years from the first day of April, 1886, and for any forfeiture of or noncompliance with this portion of this agreement within said period of time the said Frederick A. Ringler shall pay unto the said party of the second part the sum of $5,000, which is hereby agreed upon as liquidated damages, and shall be due and owing to the party of the second part, immediately upon such forfeiture or noncompliance."

N. Y. STATE REP., VOL. XXXVI. 78

This part of the agreement was alleged to have been broken by the defendant Ringler, by carrying on the same line of business as had been carried on at the place transferred to the plaintiff, and for and on account of which this sum of $5,000 was claimed from the defendant. Evidence was given during the progress of the trial tending to prove the fact that the defendant with his copartner had carried on this business in the city of New York after the sale was made to the plaintiff. And that evidence was sufficient to require the inquiry as to the fact to be submitted, as it was by the court, to the jury.

But it was insisted on behalf of the defendant that his liability was exclusively one for damages, and that the plaintiff was not entitled to recover this sum of money without proof, which was not made in the case, that an equivalent amount of damages had been sustained from these acts of the defendant. But it is quite plain that no amount of evidence could present any intelligible criterion for estimating or ascertaining the damages which would be sustained by the plaintiff by reason of the defendant carrying on and pursuing this same line of business. And it is to be inferred, therefore, because of that fact, that the parties themselves fixed this sum as an amount the plaintiff should become entitled to demand in case of a violation of this part of the agreement by the defendant. Whether a sum of money mentioned in this manner is to be regarded as fixed damages, or as a penalty, depends upon the intention of the parties, to be ascertained from the agreement and the business or transactions to which it shall relate. This agreement has plainly expressed the intention to have been that the sum of $5,000 should be paid by the defendant for a violation on his part of the agreement made by him with the plaintiff; and the inability of producing and presenting proof of the actual extent of the damages which might be incurred by reason of a violation of the contract by the defendant is a circumstance also indicating that the parties intended this sum of money to be the fixed and settled measure of the defendant's liability. And where that may appear to be the condition of the case, there it has been the constant practice of the courts to sustain the agreement as it has been expressed, and to hold the party entitled to its observance and performance to be vested with the right to recover the amount mentioned as stipulated damages when the covenant shall be shown to have been broken. Kemp v. Knickerbocker Ice Co., 69 N. Y., 45, 58; Little v. Banks, 85 id., 258.

There was, therefore, no error on the part of the court in ruling this point against the defendant.

A large number of exceptions were taken by the defendant's counsel upon rulings made concerning the admission and exclusion of evidence. The first in its order to which attention has been drawn by the counsel was the offer to read an advertisement published in the New Yorker. But this objection amounts to nothing whatever, for it was specifically confined to the ground that the date of the clipping was not shown, while the witness testified, before the evidence was received, that it must have been printed not earlier than November, 1887. This fully answered