47 Barb. 515 | N.Y. Sup. Ct. | 1867
One of the questions presented on this appeal is whether the damages found by the jury are excessive. That was one of the grounds upon which the motion for a new trial was made at the special term, and this appeal is from the order denying that motion.
Upon a careful review and consideration of all the evidence given at the trial, I am unable to resist the conviction that the verdict against the defendant for $3500 greatly exceeds the amount which the plaintiff was entitled to recover in the light most favorable to him in which the evidence can be viewed.
By the common law the cause of action would not have survived to the representatives of the deceased. If the injury to Mrs. Knight had not resulted in her death, the jury would have been permitted to entertain several considerations on the question of damages, which are excluded by the statute which gives the action in case of the death of the person injured. Among them is the personal suffering produced by the injury, which is often an element that enters largely into the mind of the jury in such eases—and where the wrongful act of the defendant is accompanied with malice or gross negligence, it is competent for the jury to give exemplary damages, where the person injured survives the injury ; while no such consideration can lawfully affect the verdict in respect to its amount, where the death of the party injured ensues. In the latter case, the verdict for the plaintiff is expressly limited by the statute to such damages as are compensatory only, and with reference to the pecuniary injuries resulting from the death, to the wife and next of kin, or to the next of kin of the deceased. In other words, the jury are to compensate by their verdict, not the person killed, but the wife and next of kin of such person, for such pecu
In the present case the plaintiff’s intestate was a lady over forty-five and nearly fifty years of age,-and had been a widow several years at the time of her death. She left a small amount of property, and died intestate. The witnesses who were best acquainted with her, testified that she, was very intelligent and industrious ; that she was a stout, strong, healthy woman; that her services readily commanded the price of one dollar per day besides her board. It appeared that she left three children, one daughter and two sons. The daughter and one of the sons were married and settled in life —all three of her children were over twenty-one years of age, and had all left her. They were bound by law to maintain her in case of her inability to support herself, if she had lived, which might involve them in a large and long continued expense. Supposing her age at the time of her death to have been forty-eight years, which would be a fair conclusion from the evidence, her expectation of life, according to the Northhampton tables was between nine and ten years. She might have' lived beyond that period and might have died within it. Experience, however, for more than a century, has proved that' to have been her fair expectation of life, in view of the uncertainty of the length of its continuance.
It seems to us that it would be preposterous to conclude that a woman of her age and circumstances could do very much more than support herself comfortably for nine or ten years, and that the probabilities are at least equal that she would,
The amount of the verdict affords reason to believe that the jury were influenced by forbidden considerations like those referred to, in coming to the conclusion that the next of kin of the deceased had sustained pecuniary damages by reason of, her death, to an amount so glaringly out of proportion to any thing which the evidence would justify.
I have carefully reviewed and considered the various exceptions taken at the circuit on behalf of the defendant, and have not been able to discover any error in those respects for which a new trial should be ordered.
But for the reason that the damages found by the verdict are greatly excessive, we are of the opinion that the order denying a new trial should ‘ be reversed and a new trial ordered, with costs to abide the event; unless the plaintiff or his attorney, within sixty days after service of a copy of the order to be entered .hereon, serve upon the defendant’s attorney a stipulation in writing, remitting $2000 of the damages found by the verdict and reducing the same to $1500 ; and in case such stipulation shall be served within the time mentioned, the motion for a new trial be denied, and the plaintiff to be at liberty to enter and perfect judgment for the last mentioned sum, with interest thereon from the time the verdict was rendered, together with costs, including the costs of this appeal.
Welles, E. D. Smith and Johnson, Justices.]
