Johnson v. Long Island R. , 80 Hun 306 ( 1894 )

CULLEN, J.

This is an appeal from a judgment entered upon the verdict of the jury at circuit, and an order denying defendant’s motion for a new trial. The action is for damages in causing the death of plaintiff’s intestate, a passenger on defendant’s railroad. No question is made that the issue of defendant’s liability was not properly for the jury, but we are asked to reverse the judgment on the ground that the damages are excessive, and for alleged errors of the court in its charge to the jury on this subject. There can be no doubt as to the power of this court to review the determination of the jury as to the amount of damages. Reference to the amount of recovery in other cases is therefore made, not as establishing a rule of law controlling our action, but as evidencing the common judgment or opinion of courts on this subject. The deceased was a single man, 33 years old, and worked in making pianos for the plaintiff, his father, with whom he resided. He was paid no fixed wages, but such amounts as the father deemed proper. The amount of the recovery was $5,000. It is only in rare instances that the courts should interfere with the verdict of a jury in this class of cases. We cannot say that $5,000 is an excessive sum for the life of a healthy man of the age of deceased, considering the relations existing between the father and son. It certainly does not contrast unfavorably with other recoveries. In Tilley v. Railroad Co., 29 N. Y. 252, for the death of a married woman, leaving a husband and children, managing the household, but the source of no earnings or revenue, the recovery was $5,000. In Ihl v. Railroad Co., 47 N. Y. 317, for the death of a child 3 years old, the recovery was $1,800. In Houghkirk v. Canal Co., 92 N. Y. 219, for a child aged 6, the recovery was $5,000. In Bierbauer v. Railroad Co., 15 Hun, 559, a recovery of $5,000 by a father for the death of a son aged 21 years, and earning $25 a month, was upheld by a majority of the court.

The court on the trial charged the jury that it might look ahead and consider what the deceased would have brought to his next kin while living, and what was their prospect of inheriting from him when dead. To the latter part of this charge exception was taken.. "The charge in this respect is justified by authority. In Ihl v. Railroad Co., supra, it is said by Judge Rapallo:

“It was within the province of the jury to form an estimate of the dam-ages with reference to pecuniary injury, present or prospective, resulting to the next of kin. The statute does not limit the recovery to the actual pe•cuniary loss proved on the trial.”

In McIntyre v. Railroad Co., 37 N. Y. 290, “the statute has set no bounds to the sources of these pecuniary injuries.” In Birkett v. Ice Co., 110 N. Y. 504,18 N. E. 108, Judge Earl writes:

“In estimating the value of this child to her next of kin, the jury could take into consideration all the probable, or even possible, benefits which might result to them from her life, modified, as in their estimate they should lie, by all the chances of failure and misfortune.”

The prospect of the deceased accumulating property, and the next ■of kin inheriting from him, is not more speculative in the expectation of his acquiring money, and the next of kin sharing in his bounty or beneficence while he should live. The two exceptions to the admission of evidence are not well taken. The questions put to the witness at folios 141 and 146 were legitimate cross-examination, nnd tended to contradict his testimony as to the probable cause of the action. A judgment and order denying new trial should be •affirmed, with costs. All concur.