Keegan v. Sage. Motion to strike out a portion of answer as irrelevant, redundant and scandalous. Action for breach of promise by Delia Keegan against Russell Sage. The further facts are fully stated in the opinion. J. Baptist Marshall, for the motion. Edward C. James, opposed. PRYOR, J.-In a complaint for breach of promise the plaintiff says that "she was and ever had been chaste and a virgin." The defendant denies the allegation, and asserts affirmatively that she has led a profligate life. The paragraph containing this portion of the answer the plaintiff moves to strike out as irrelevant, redundant and scandalous. Obviously, if the allegation in the complaint be material, a denial of it can be neither irrelevant, redundant nor scandalous (Dovan . Dinsmore, 33 Barb. 86). On the other hand, if the allegation be immaterial, its insertion in the complaint entitles the defendant to traverse it by responsive allegations (McIntyre v. Ogden, 17 Hun, 604). But defendant, not content with putting in issue the virtuous conduct of the plaintiff, proceeds to state that, in consequence of her profligacy, she has been repeatedly. committed by police magistrates, and has sought to mask her identity under a variety of aliases. Misconduct of the plaintiff subsequent to the engagement of marriage is a relevant fact in mitigation of damages (Button v. McCauley, 1 Abb. Ct. App. Dec. 282). But, to be available, the matter of mitigation must be pleaded jury or by referee, and that it does not impair the right of a defendant who does raise an issue by denial and get to trial, to disprove by way of mitigation, anything that plaintiff has alleged (See Abb. Brief on Pl. 634). Vail v. Broadway R. R. Co. of Brooklyn. (Code, 536); and must be expressly stated as a partial defense (Code, § 508). Here the matter is not so pleaded, but is alleged generally in answer to the action. Its sufficiency in form, however, cannot be tested upon this motion (Code, § 508; Struver v. Ocean Ins. Co., 2 Hilton, 475; Dovan v. Dinsmore, 33 Barb. 86, 87). The question then is, whether, in substance, the matter pleaded be effectual in mitigation of damages. In other words, does it charge the plaintiff with such misconduct as shows her to be "an unfit companion in married life" (1 Abb. Ct. App. Dec. 284)? In effect, the allegations are, that, by reason of her profligate life, she was committed to prison, and that to elude justice she disguised herself under fictitious names. This, to be sure, is matter of mitigation. If otherwise, however, the denial of the allegation in the complaint is good pleading, and its presence saves the entire paragraph from suppression-which is the express object of the motion. The matter objected to being relevant upon the question of damages cannot be scandalous (Story Eq. Pleading, $270). Plaintiff's affidavit makes no case for a bill of particulars. Motion denied; costs to abide the event. VAIL v. BROADWAY RAILROAD COMPANY OF BROOKLYN. City Court of Brooklyn, General Term; November, 1893. Negligence; questions of fact.] A horse car of the defendant was operated over a misplaced switch at a rapid pace, in violation of a rule of the company requiring drivers to walk their horses over switches, and thereby the plaintiff, who was riding upon the front platform of the car as a passenger, was thrown from Vail v. Broadway R. R. Co. of Brooklyn. the car and injured. In an action brought by plaintiff to recover for such injuries,-Held, that the questions as to the defendant's negligence and the plaintiff's contributory negligence were for the jury. Railroads; street railroads; riding upon platform.] Section 46 of the General Railroad Act (L. 1850, c. 40), which exempts companies formed thereunder from liability for injuries occurring to passengers while riding upon the platforms of cars, does not apply to street railroads operated by horse power.* So held, notwithstanding a statute incorporating a horse railroad company, expressly provides that "all the provisions of said "general railroad act shall apply to" said company. Same.] A rule of a horse railroad company prohibiting smoking "except on the front platform," waives the provisions of Section 46 of the General Railroad Act, where it is proven that plaintiff was smoking and paid his fare on the front platform. Damages.] Where the plaintiff, a working man, 67 years old, was shown to have sustained such painful and lasting injuries, that he was confined to the hospital under surgical treatment for three months, was, at the time of the trial, seven months thereafter, still attended by his surgeon and still suffered great pain, that his leg was permanently shortened, that he will always be lame and will never be able to stand on his feet all day at any employment, and that he could earn his living better with an artificial foot,-Held, that a verdict for $7,500 will not be set aside as excessive. The case of Morris v. Eighth Ave. R. R. Co. 68 Hun, 39, not followed. Appeal to the General Term from a judgment of the Trial Term of the City Court of Brooklyn entered upon a verdict of a jury in favor of the plaintiff for $7,500 dam * This question was raised, but not decided in Nolan v. Brooklyn City, etc., R. R. Co. 87 N. Y. 63; see Hayes v. Forty-second St. R. R. Co. 97 N. Y. 259. Minor children, not being passengers, are forbidden upon the platforms or steps of either steam or street horse cars by L. 1880, c. 585. But a violation of this statute, although provable, does not for all purposes necessarily establish negligence (Connolly v. Knickerbocker Ice Co. 114 N. Y. 104). † See the recent cases on the measure of damages for causing death or injuring the person, collected and analyzed in 1 University Law Rev. Nov. 1893. Vail v. Broadway R. R. Co. of Brooklyn. ages, and from an order denying the defendant's motion for a new trial upon the minutes. Action for damages for personal injuries in consequence of negligence. The opinion states the facts. Thomas S. Moore, Esq., for the appellant. Thomas E. Pearsall, Esq., for the respondent. OSBORNE, J.-Plaintiff brought this action to recover damages for injuries alleged to have been sustained by him through the negligence of the defendant's servants. He obtained a verdict of the jury in his favor, and from the judgment entered thereon and the order denying a motion for a new trial, this appeal is taken. It appeared from the evidence in the case, that on October 20, 1892, plaintiff took passage on one of defendant's horse cars near the corner of Fulton Street and Alabama Avenue with a view of going to his residence. He was smoking a cigar at the time, and he got on the front platform of the car, and there paid his fare to the conductor. At, and just beyond the point where plaintiff boarded defendant's car, there is a network of rails and crossings and switches extending some considerable distance. As the car approached one of these switches, or cross-overs, the tongue of the switch being misplaced, the car was suddenly jerked on to the cross-over, by reason of which plaintiff was thrown from the platform to the street and thereby received the injuries complained of. There was testimony on the part of the plaintiff that the setting of the switch in question was done by a small boy (the witness Brown), who testified that he got off the car and pushed the tongue of the switch to one side with his hand; that it was the custom of the boys to so tend switch for the drivers of the cars in that neighborhood, and that they usually received a penny from the conductor for their trouble. Plaintiff's evidence further tended to show Vail v. Broadway R. R. Co. of Brooklyn. that, while the car was crossing this switch, it was going at a high rate of speed, which was in direct violation of one of the rules of the company, which required the drivers to walk their horses while crossing a switch, and that the car after striking the switch went some ten feet on to the cross-over, before it was stopped. There was further testimony on the part of the plaintiff seeking to show that the rails at the switch were loose, that they were not properly spiked, that the tongue of the switch was worn down, and that these alleged defects contributed to cause the car to be thrown to the wrong track. This testimony, however, as to the boys turning the switch, as to the rate of speed of the car, and as to the alleged imperfect condition of the rail and tongue of the switch, was denied by witnesses on the part of the defendant. It is very plain to us, from a careful perusal of all the testimony in this case, that the question of the negligence of the defendant and of the lack of contributory negligence on the part of the plaintiff was a question for the jury. Enough was made out by the plaintiff on his side uncontradicted, to entitle him to a submission of his case to the jury, and it would have been error to have dismissed the complaint at the close of the plaintiff's case. After the presentation of the defendant's evidence there was a sharp issue presented between the parties on many important. points in the case, and it was essentially the province of the jury to determine those disputed points. Accordingly, we think that the motion to dismiss the complaint at the close of the plaintiff's case, and which was renewed upon the whole case, was properly denied. The learned counsel for the defendant further claims, that under the statutes in pursuance of which defendant was incorporated, it was not liable for injuries sustained by the plaintiff while riding on the front platform of one of its cars. Defendant proved on the trial that it was organized under chapter 303 of the laws of 1858, and that section 6 of said chapter provided that, "It shall be lawful for |