64 N.Y.S. 878 | N.Y. App. Div. | 1900
The only point involved upon this appeal is the question of the inadequacy of the damages which have been awarded by the jury. The action is brought by the father of the deceased, suing in a representative capacity,'to recover damages on account of the negligence of the defendant in causing the death of his son. Upon the merits the jury found in favor of the plaintiff, and by their verdict assessed his damages at the sum of six cents. The plaintiff moved to set the verdict aside upon the ground, mainly, that the damages awarded were inadequate. The motion was denied, and from the judgment entered upon the verdict and the order denying the motion for a new trial the plaintiff appeals. No appeal was taken by the defendant.
It appeared upon the trial that the deceased was past sixteen years of age at the .time of his death, was five feet and eleven inches in height and weighed 140 pounds •— unusually large for a boy of his age. He was strong and healthy, very active and very intelligent.' He had been at school, but expected to graduate in the summer following his death, which occurred on the 9th of December, 1898. In the summer months for five or six weeks during vacation time he assisted his father in his business of dealing in grain and feed, and very often upon Saturdays when there was no school; and he took his brother’s place when he was off on a vacation. The boy received no compensation for this service, nor did he earn any money elsewhere. The plaintiff supported him, paid the expenses of his education, and was. not relying upon him at
It may be conceded that the extent of damages which may be awarded in cases of this character rests very largely with the jury. But the finding and the evidence upon which it is based are subject to the same scrutiny in review by this court as upon any other question. Unless the finding be justified by the evidence, the court is called upon to set it aside, applying thereto the same rules which the court is authorized to apply in reviewing questions of fact. (Brown v. Foster, 1 App. Div. 578; O'Shea v. McLear, 15 Civ. Proc. Rep. 69.) Exercise of "the po wer is not go verned by any well-defined rule, but rests in the circumstances of the particular case. The measure of the plaintiff’s right of recovery is the pecuniary damage which he has sustained. In measuring this, however, the consideration is not limited to the benefit received prior to the death, but it should embrace all the probable or even possible benefits which might accrue from this life, modified by all the chances -of failure and misfortune.- Among these is, the probable or possible direct benefit from earnings during minority, and the legal duty of support of the parent owed by the infant in case of need after majority (Birkett v. Knickerbocker Ice Co., 110 N. Y. 504) ; also his advice during life and the prospect of inheriting from him after death. (Benson v. Corbin, 145 N. Y. 351.) There are-few cases in which special pecuniary damage' can. be .shown. Especially is this true of infants of tender years. But such fact does not: justify the court in holding that no damage is shown, or in directing that nominal damages only can be awarded, as the right to-recover is not only for present but also for prospective loss. (Ihl v. Forty-second Street R. R. Co., 47 N. Y. 317.) It is the evident contemplation of the statute that every person is of some relative-value to others. (Oldfield v. N. Y. & Harlem R. R. Co., 14 N. Y. 310.) Modern legislation in this regard, both constitutional and statutory, has emphasized the assumptions to be-drawn from the enactment. (Medinger v. Brooklyn Heights R. R. Co., 6 App. Div. 42.) While, as we havé observed, each case is to be largely governed by
It was said, however, by the learned court below.that the evidence preponderated in favor of the defendant, and for that reason' it
Yah Brunt, P. J., Rumsey, Patterson and Ingraham, JJ., concurred.
Judgment reversed, new trial ordered, the plaintiff to pay the costs and disbursements of the former trial.