
    Elizabeth B. Fajardo, as Administratrix, etc., of Theodore H. Fajardo, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant, Impleaded with Others.
    
      Negligence — evidence that the decedent’s salary^ would probably have■ been increased — when too conjectural — capitalization of the decedent’s earning power is not' a. ■proper basis of a verdict. ■
    
    In án action.brought.'to recover damages for the negligent, killing of the plaintiffs intestate, it is error to permit; a member of the firm hy which the intestate was employed at the time of his death to state that there was a reasonable expectation that the intestate’s salary would, if tie had' lived, have been increased from time to time tO' a certain- figure, where it appears -that this . expectation, was based upon the hypothesis that the business of the firm would continue to be prosperous, and,that its prosperity .was dependent upon con-. ditions of peace or war prevailing in-a South American republic in which the ' firm did business’ •'
    Such a witness should only he permitted to state the nature of the- business; the character of the services which .the intestate rendered, , the amount which-was paid for such services, the conditions of the business and the usual rate paid employees, considering the length of their employment, their skill and faithfulness. From these facts it is for the jury to determine what would he, within reasonable prospect, the earning power of the decedent.
    In such an action the jury is not permitted to capitalize the earning power of the decedent, and award the plaintiff a sum of money which, at the rate of interest earned by trust funds, would produce the equivalent of such earn- : ing power.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of January, 1903, upon the verdict of a jury for $40,000, and also from an order entered in said clerk’s office oh the 26th day of January, 1903, denying the said defendant’s motion for a new trial made upon the minutes.
    
      Austen G-. Fox, for the appellant.
    
      EdMvn T. Rice, for the respondent.
   Hatch, J.:

Plaintiff’s- intestate was killed on January 8,1902, in a railway collision which occurred in the tunnel of the defendant in the city of New York. On the trial it was admitted by the defendant that plaintiff’s intestate came to his death through the negligence of the defendant, and the only question at issue and litigated upon tlie trial was the amount of the .damages which the plaintiff was entitled to recover. Several questions are presented by this appeal which áre not necessary to be discussed, as we have reached the conclusion that the judgment must be reversed for prejudicial error committed in the reception of evidence and in the charge of the court respecting the rule to be applied in awarding damages.

Walter H. Capen was called as a witness and testified that he was in business at 60 Pearl street, in thé city of New York. It does not appear from the record what the business was which was carried on by the firm of which this witness was a member. It did, however, appear that the deceased occupied a confidential position with the firm, attended to correspondence and in making out consular invoices and house invoices, and that he was able to speak and write Fi’enéh, Spanish and a little Portuguese ; that the principal business of the firm was conducted in Colombia. This'witness, testified to .the satisfactory manner in which the deceased discharged his duties to the firm, also ■ to his correct habits, and that he was receiving a compensation of twenty-three dollars per week from the firm at the time of his death. He was asked : “ Q. What were his prospects as to future earnings ? ” To this question defendant’s counsel objected, as' being too remote, conjectural and uncertain and calling for a conclusion or opinion of the witness. The court overruled the objection, the defendant excepted, and the witness answered : “A. Why, we advance every year, according to the prosperity of the business.” The examination of this witness was then continued as follows: “ Q. What reasonable rate of increase would this man have réceived were he now living; at what rate per week would it be ? [Samé objection, ruling and exception.] A. He would receive this year about an increase of $8 per week, so that his salary at this time would be about $31 a week, if he were now living. Q. What .is your custom as to these increases of salary with your old employees? [Same objection, ruling and exception.] A. Every'.year, as I say, we always made such increases, according to the prosperity of the business. We have always been more or less prosperous. We had our principal business in Colombia, which country has been in war about three years and has just got over it, and we would' now be in a better position to further his interests. Q. Then his weekly return at the time of his death was less by reason of the circumstance of the war in Colombia, is that it ? Defendant’s counsel: Objected to as calling for the conchision of the witness. The Court: This witness was at the head of the firm. He is the best man to say what prospects one of his employees had in that firm. . Defendant’s counsel: I do not doubt at all his entire competency, but what was in my mind was the probable or improbable condition as to war or peace in some part of South America, which is a rather conjectural basis for his testimony. Plaintiff’s counsel: The question was addressed to his receiving less .by reason of the pendency- of war at that time than he otherwise would have. [Objection overruled'; exception to.- defendant.] A. Yes, sir; peace has been • declared there. Q. And since then peace has. been declared, has it not? A, Yes, sir. Q. What would he his rate of weekly pay at this time if he were now living ? Defendant’s counsel: Objected to upon the ground that they are entitled to receive damages based upon a consideration of what he was getting when he died. To allow this witness to state what, in his opinion, he would be receiving if he were now living is conjectural and uncertain and irrelevant. The Court: It is only a circumstance in the case. It is not conclusive. It is a circumstance , tliát the jury may look at in connection with other circumstances. They may attach very little importance to it, but it is competent. [Exception to defendant.] A. About $32.” This witness thén testified as to the earnings of the deceased outside of his weekly salary in. addressing catalogues, business and private letters, working at home. He was then asked by plaintiff’s counsel: “ Q. Returning for a moment to the question of yearly increases. Was Fajardo a man who would have been regularly promoted ? [Same objection, ruling and exception.] A. Yes, sir. Q. Might he not have reasonably expected to be paid as much as $2,500 or $3,000 a year by reason of the character of the services rendered by him to you? Defendant’s counsel: Objected to as conjectural and uncertain, and as calling for the conclusion of the witness ; and that it is irrelevant and too remote. The Court: The witness may answer if he can answer with reasonable certainty. [Exception to defendant.] A. There would be a reasonable certainty in time; yes, sir. Q. Of his reaching $2,500 or $3,000 a year? A. Yes, sir; there would be.”

The quoted testimony was clearly incompetent for several reasons. The expectation of advancement in salary was based upon the prosperity of the business of witness’ firm, and this was made the subject of great uncertainty, as it appeared that the prosperity of the business was dependent upon the conditions of peace or war in the State of Colombia, which, if current reports might be considered, is still overshadowed in doubt. Possibilities of a prosperous business as a basis for predicating an award of damages upon which to found an increase in the payment of salary are too conjectural to be considered; but in. addition to this the witness did not limit his testimony to the possibilities of peace in Colombia and the prosperous business therefrom, but he was permitted to assume and testify as an absolute certainty that decedent at the time of the trial would have been receiving about $32 per week, and that he could reasonably except to receive within a short time from $2,500 to $3,000 a year,. In this matter the witnesses was allowed to usurp the province of the jury by stating the income the decedent would have-been receiving had he lived. Manifestly, this was improper.. The witness could only be permitted- to state the nature of the business, the character of the services which, the decedent rendered, the-amount which was paid for such services,' the conditions of the business and the usual rate paid employees,.considering the length-of his employment, his skill and faithfulness, and from these facts; it was for the jury to conclude what would be within reasonable prospect the earning -power of 'the decedent. The examination proceeded far beyond a legitimate inquiry, and resulted in the witness being permitted to substitute himself for the jury which is not permissible.' -

Henry Parish was called as a witness for the plaintiff and testified-that he was the second vice-president of the New York Life ■ Insur-. anee and Trust Company; that such company had a large number of trusts; that he was familiar with the business and returns on the investment of trust funds. He was then asked and permitted to answer, over the objection and exception of the defendant, that the' rate of interest earned by trust funds at the present time was about three per centum. Upon this subject the court upon request of plaintiff’s counsel charged': “That in estimating the amount of damage to be awarded, the jury should take into consideration that the infant children will be entitled to two-tliirds proportion of such recovery, the amounts to be paid to the respective guardians.-, of the children, and that the amount of interest which can reasonably be expected to be obtained by guardians from trust investments, under the laws of New York at the-present time, does not exceed three per cent or three and one-lialf per cent per annum.” The defendant’s counsel asked the court to charge upon this subject:- “ That the amount of the income of the deceased to be considered' by the jury is the amount which he was receiving at or about the-time of his death.” The.court charged that' this was a circumstance' which might be considered by the jury. The defendant’s counsel-asked the court to charge that it “ must be limited to that.” The court declined so to charge and the defendant excepted. The' defendant’s counsel further asked the court to charge “ that the jury must not award such a sum, if- invested with reasonable safety, as would produce an annual income to what they may find as a fact to have been the net earnings of the deceased at or about the time of his death.” The court declined so to charge, saying: The jury will all the time have to consider the circumstance that he might have • died from some other cause at any time.” The defendant’s counsel further asked the court to charge: “ In determining what is the pecuniary loss caused by the death of plaintiff’s intestate, the jury are not to base their allowance upon a consideration of what is to be done with the money.” The court declined so to charge and the defendant excepted.

By the express provisions of section 1904 of the Code of Civil Procedure the damages awarded to the plaintiff may be such a sum as the jury * * upon a trial * * * deems to be a fair and just compensation for the pecuniary injuries resulting from the decedent’s death to the person or persons for whose benefit the action is brought.” This provision of the Code and section 1903 were the subject of examination in Hinsdale v. N. Y., N. H. & H. R. R. Co. (81 App. Div. 617) and it was there held that evidence of the amount which it would cost to purchase an annuity equal to the amount of the decedent’s income, based upon the. probable duration of his life, had he"survived, was incompetent, and that the jury would not be justified in using such sum as a basis upon which to found their verdict. The infringement of the rule in that case was not so grievous an error as the infringement of the rule in the present case. Some courts have supported such a measure of damages (Baltimore & O. R. Co. v. Henthorne, 73 Fed. Rep. 634), but herein the proof was received and the jury authorized to find the earning power of the sum to be awarded and thereby to determine what sum would be necessary at the rate of three or three and one-half per cent to produce an income equal thereto or1 the proportion to which the children were entitled, which the deceased was earning and gave to - them during his lifetime. This was nothing more nor less than a capitalization of the earning power of decedent, and thereby making it the basis of an award of a sum of money, which, at that rate of interest, would produce the equivalent thereof. This rule of damage has been condemned. (Morrison v. L. I. R. R. Co., 3 App. Div. 205; Gregory v. N. Y., L. E. & W. R. R. Co., 55 Hun, 303.)

•The evidence was clearly incompetent and the charge erroneous,! as such rule would give not only the amount of. the pecuniary loss, which the plaintiff and the children had sustained, but would in-addition thereto, give them the principal sum which produced that, amount of- income. The measure of; damages is the pecuniary loss sustained and the. award is to' be made upon that basis. Beyond' this the law does not authorize a recovery. (Geary v. Met. St. Ry. Co., 78 App. Div. 441.)

; It follows .that the judgment and. order should be reversed and anew trial granted, with costs to the-appéllant to abide the event.

O’Brien, Ingraham, McLaughlin and Laughlin, JJ., concurred.'

Judgment and order reversed and new trial ordered, costs " to appellant to abide event. ' '  