
    Edward O’Neill, App’lt, v. The Brooklyn Heights Railroad Co., Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 28, 1893.)
    
    Negligence—Damages.
    In an action for personal injuries sustained by the horse which plaintiff was riding being run into by a cable car of defendant, the testimony did not show his injuries to be severe, and there was evidence from which the jury might find them to be slight. Held, that a nominal verdict would not be disturbed.
    Appeal from judgment in favor of defendant for costs, entered on verdict of six cents in favor of plaintiff, and from order denying motion for a new trial on the ground that the verdict is for insufficient damages.
    Action for personal injuries sustained by plaintiff while riding the horse of his brother by reason of a collision with a cable car of the defendant. This case and that for injuries to the horse were tried together, and a verdict for six cents was given in each case. The following opinion was written in both cases.
    
      James P. Niemann, for app’lt; Henry D. Hotchkiss and William S. Maddox, for resp’t.
   Dykman, J.

Both of these actions are based upon negligence, and the cause of action grew out of the same accident; they were both tried together at the circuit before a jury, and both plaintiffs recovered a verdict for six cents damages.

Both have appealed from the judgment entered upon the verdict, and from the order denying a motion for a new trial upon the minutes of the court.

The facts are substantially these: The plaintiffs are brothers. Edward was in the employ of his brother James, who was the-owner of a horse. While Edward was riding the horse down Montague street, in the city of Brooklyn, it was struck by one of the cable cars of the defendant and thrown down, and Edward went off." Both horse and man received injuries, and these actions are for the recovery of damages resulting therefrom.

As we have stated, the verdict was in favor of the plaintiffs in both cases, and so it must be assumed that the jury found all the facts in favor of the plaintiffs, and the question is whether we should interfere with the judgment by reason of the inadequacy of the damages.

In relation to the plaintiff Edward the testimony did not show his injuries to be severe, and there was evidence from which the jury might find them to be slight. In his case therefore the verdict is not so palpably inadequate as to justify our interference with the verdict.

In relation to James O’Neill, however, we cannot take the same view. There was no evidence to justify a nominal verdict in his case. The horse was shown to be a fine young horse of the value of $500 or $600 previous to his injuries, and after that to be worth no more than $100.

That testimony was uncontradicted, and there was no dispute about his injuries. His hip was knocked down, and he was injured otherwise.

Under such proof there was no justification for a nominal verdict, and it should have been for substantial damages.

The size of the verdict shows that it was the result of mistake or passion or prejudice. It is unjust, and should not be permitted to stand. It finds that the defendant has negligently inflicted serious injuries to a valuable horse belonging to the plaintiff without his fault, or the fault of his servant, and then assessed his damages at six cents.

With full knowledge and appreciation of the peculiar province of the jury in the determination of the amount of damages to be allowed in actions sounding in tort, and the reluctance with which appellate courts interfere with verdicts upon questions of amount only, we yet recognize the rule which permits such interference in a proper case.

Juries cannot be permitted to do injustice to suitors. Inadequate and excessive verdicts stand upon the same ground, and where they are so large or so small as to be palpably unjust, and the result either of an objectionable compromise, passion or prejudice, improper influence or disregard of law, it is the duty of the courts, in the exercise of the supervisory power with which they are clothed, to review the evidence and grant a new trial where the ends of justice require it. McDonald v. Walter, 40 N. Y., 551; 8 Abb. N. C., 392 ; Cowles v. Watson, 14 Hun, 41.

Tins question comes legitimately before us on the appeal from the order denying the motion for a new trial on the minutes of the court.

The trial judge may now grant a new trial because the verdict is for excessive or insufficient damages, Code Civil Procedure, § 999, and one of the grounds of the motion for a new trial upon the minutes in this case was the insufficiency of the damages. See, also, Cowles v. Watson, 14 Hun, 42.

The judgment and order denying the motion for a new trial in the case of Edward O’ISfeill should be affirmed, with costs; but the judgment and order denying the motion for a new trial in the case of James OflSTeill should be reversed and a new trial granted, with costs to abide the event.

Barnard, P. J., and Pratt, J., concur as to Edward O’Meill case.  