
    Lawrence Seeley, as Administrator, etc., of Nellie Seeley, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Negligence—on proof that the deceased looked both ways before crossing a track the question of contributory negligence is for the jury — excessive verdict — testimony of a lay witness as to the distance at which he could hear a bell or whistle.
    
    In an action brought to recover damages resulting from the death of the plaintiff’s intestate, caused by the alleged negligence of the defendant, it appeared that the intestate, a young girl, was walking arm in arm with another girl toward a railway crossing. They came first to two tracks of the Buffalo, Rochester and Pittsburg railroad, twenty-five feet beyond which were four tracks of the defendant.
    
      From the intervening space, some twenty-five feet, between the two sets of tracks, there was practically an unobstructed view to the west. As the girls reached the defendant’s tracks a train passed going west upon the further track.
    They stopped within five feet of the track nearest to them, looked both ways, and, neither seeing nor hearing an approaching train, then attempted to cross the nearest track, when both were struck, and the plaintiff’s intestate was killed, by a train going east upon that track at a high rate of speed, blowing the whistle only just before the accident, and, according to the testimony given on behalf of the plaintiff, not sounding a bell. The night was very dark, the headlight of the locomotive which struck them was lighted, and there were lights inside the cars of the train which had just gone west.
    
      Held, that although the case was on the border line separating questions of fact from questions of law, yet, as there was no proof to contradict the statement of the companion of the deceased that both looked in each direction before going upon the track upon which the accident happened, the question of contributory negligence was properly held by the trial court to be one for the jury.
    The deceased girl was nineteen years old and earned seven dollars per week, which she gave to her mother for the use of the family. Her father, a machinist, was sixty-one years old.
    The jury rendered a verdict for the plaintiff of 86,000.
    
      Held, that considering the probable length of time during which the plaintiff would enjoy the income of his daughter’s earnings, and the possibility of their interruption or diversion' by loss of employment, marriage, death or her attainment of her majority, 84,000 was a liberal allowance for the damages sustained by the plaintiff, and that the verdict should be reduced accordingly;
    That as the new Constitution had removed all limitations as to'the sum recoverable in such an action, it had become especially important that appellate courts should rigidly scan the amount awarded by juries.
    The testimony of a witness living near the crossing as to the distance at which bells or whistles of defendant’s locomotives could be heard, was admitted at the trial and excepted to by the defendant.
    
      Held, that its admission did not call for a reversal of the judgment.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, from an order of the Supreme Court, made at a Trial Term thereof held in and for the county of Monroe, and entered in the office of the clerk of the county of Monroe on the 10th day of January, 1896, denying the defendant’s motion for a new trial made upon the minutes after a trial before the court and a jury.
    This action was brought by the plaintiff to recover damages sustained in consequence of the death of his intestate and daughter, Nellie Seeléy, who was struck and almost instantly killed by a locomotive upon the defendant’s road, about nine o’clock in the evening of July 10, 1895.
    The intestate was a bright, healthy girl, nineteen years of age, who was employed in the Hess tobacco factory in Rochester, and resided with her father upon Dengler street, in that city.
    Hpon the night in question, a young acquaintance by the name of Mamie Reichenberger, called at the house of the intestate, and shortly after nine o’clock they started together for the house of Miss Reiehen berger.
    They passed along Dengler street until they came to Saxton street, which is a highway, running north and south within the corporate limits of the city of Rochester, and which is crossed at right angles by the defendant’s four tracks, a short distance south of which it is also crossed by the two tracks of the Buffalo, Rochester and Pittsburgh railroad. Saxton street is sixty-one feet in width and the east sidewalk is four feet eight inches in width. From the north rail of the Buffalo, Rochester and Pittsburgh railroad to the southerly track of the defendant, a distance of about twenty-five feet, there is practically an unobstructed view to the west as far as the eye can see; and likewise to the east for a distance of about 1,400 feet, although the view in the latter direction is interrupted for a short space by a flagman’s shanty.
    The girls were walking north on the east sidewalk of Saxton street with their arms locked, and as they approached the defendant’s tracks, a passenger train passed, going west upon track No. 2. They stopped when • within about, five feet of track No. 1, and waited until this train had crossed the highway, and then, as testified to by Miss Reichenberger, they both looked to the west and then to the east, and, seeing and hearing no train approaching, they attempted to cross the track, when they were struck dy a passenger train going east upon track No. 1, with the. result that Miss Reichenberger was slightly injured, and the plaintiff’s intestate was so seriously hurt that she died soon thereafter.
    The evidence tended to show that the train going east was running at a high rate of speed ; that no whistle was blown until just before the accident occurred; and there was the usual conflict of evidence with regard to the ringing of the bell.
    It also appeared that the night was quite dark, but that the headlight of the locomotive was lighted, and that there were lights inside the cars attached to the train going west.
    At the close, of the plaintiff’s case a motion was made by the defendant for a nonsuit upon the usual grounds, which was denied; and the case was finally submitted to the jury, which rendered a verdict in favor of the plaintiff for the sum of $6,000.
    
      Edward Harris, for the appellant.
    
      P. Chamberlain, for the respondent.
   Adams, J.:

That there was sufficient evidence of the defendant’s negligence in its management of the train which caused the death of the plaintiff’s intestate to raise a question of fact for the jury is not seriously controverted ; but it is, nevertheless, insisted that the plaintiff should fail in his action for the reason that he omitted to show that his intestate was free from contributory negligence; and, certainly, the case, upon this branch of it, is by no means free from embarrassment.

In view of the undisputed fact that a person standing in Saxton street at any point south of the defendant’s south track, and within twenty feet thereof, would have an unobstructed view of the track to the west as far as the eye could reach, it is scarcely conceivable that the intestate could have come into collision with the train which struck her had she been at all mindful of the obligation which rested upon her of exercising some reasonable degree of care for her own protection ; and yet we have the evidence of her companion, Miss Reichenberger, who testifies in the most unqualified manner that when they reached a point about five feet south of track No. 1 they stopped; that she then looked to the west and then to the east; that Nellie looked the same way she did, and that, not seeing or hearing the approaching train, they started to cross the track and were struck.

As was said by the learned trial justice in his admirable charge to the jury, this evidence makes it necessary that one of two conclusions should be adopted — either this girl’s statement was untrue, or else the train was approaching at such a rate of speed and under such conditions as to render its approach, to some extent at least, unnoticeable.

The alternative which was thus presented to the jury was by them resolved in favor of the latter theory; and although we may think, from a reading of the case, that their conclusion is not in harmony with the one we should have reached had we been in their place, and although we may regard the question of contributory negligence presented by the facts of this case as one approaching very close to the border line which separates a question of fact from one of law, yet we are not prepared to say that error was committed in the treatment which it received at the hands of the trial court.

It is to be borne in mind, as we consider this branch of the case, that the night was, as all, or nearly all, the witnesses testify, an extremely dark one; that the train was approaching at a high rate of speed; that, as the plaintiff’s witnesses testify, no hell was rung or whistle blown ; that there were a number of switch and semaphore lights burning west of Saxton street; and that another passenger train was just passing west upon track No. 2, with the light of which shining through the car windows it was not impossible to have confused that which came from the headlight of the locomotive drawing the eastern train. But whatever explanation may be adopted as regards the failure of the plaintiff’s intestate to avail herself of the opportunity, which was afforded by the conditions surrounding her, to observe the approach of the train which struck her, the fact remains uncontradicted by any oral proof that the girls did look in both directions before stepping upon the track; and the rule seems now to be pretty well settled in this State, that where this is done a question of fact is generally created, and that a recovery is not necessarily impossible, because it can be shown that an approaching train might and ought to have been discovered by one who was upon the lookout for it. (Beckwith v. N. Y. C. & H. R. R. R. Co., 54 Hun, 446; affd., 125 N. Y. 759 ; Miller v. N. Y. C. & H. R. R. R. Co., 82 Hun, 164; affd., 146 N. Y. 367; Parsons v. N. Y. C. & H. R. R. R. Co., 113 id. 355 ; Greany v. L. I. R. R. Co., 101 id. 419.) In the case last cited the learned judge who wrote the opinion uses this language: “ The plaintiff is not hound to see ; he is hound to make all reasonable efforts to see, that a careful, prudent man would make in like circumstances. He is not to provide against any certain result. He is to make an effort for a result that will give safety; such effort as caution and prudence will dictate. I know of no exception to the doctrine that where there is any evidence, direct or inferential, of care or caution on the part of the person injured, the question whether it was in compliance with that rule is for the jury.”

The only exception to the admission of evidence, to which our attention has heen directed, resulted from the ruling of the trial court upon a question put to the witness Boss, who lived in the vicinity of the crossing, and who, after stating his opportunity for hearing, testified that he heard no bell rung upon the locomotive which struck the intestate. Upon his re-direct examination he was asked by the court this question: Erom what distance west of your house have you heard the bell ring or the ivliistle blow?” The question was objected to; the objection was overruled and the witness answered: Some trains you would hear them from York street, and then, again, you would not hear them till they got right close to you.”

We have recently had occasion to hold, in a case similar to this, that a witness might testify that he could have heard a bell ring from a certain distance, and we think the evidence sought to be obtained from this witness was of the same character as that which we held proper in the case referred to. (Stever v. N. Y. C. & H. R. R. R. Co., 7 App. Div. 392.) But, however that may be, no possible harm could have resulted from the answer which the witness gave to the question objected to.

We come, therefore, to the consideration of the only remaining question in the case, which arises upon the defendant’s contention that the damages awarded to the plaintiff are excessive in amount. It is both a delicate and a difficult matter to determine the full measure of the plaintiff’s pecuniary loss, resulting from his daughter’s death, by any standard which is available for that purpose ; and yet we know that his recovery in this action must be limited by purely pecuniary considerations, and that it is the duty of both courts and juries to keep this fact in mind when attempting to solve a problem surrounded by such obvious difficulties. This duty is rendered even more imperative, now that all statutory limitation has been removed by the recent change in our organic law; and, therefore, it is especially important that courts sitting in review should carefully but rigidly scan the verdicts of juries, to see that their conclusions, in this particular, are founded upon justice and reason, and not upon prejudice and sentiment.

The facts in this case, so far as they bear upon the question of damages, are, that the plaintiff was about sixty-one years of age, and his daughter nineteen, at the time of the accident. The former was following the occupation of a machinist, and the latter was a bright, vigorous and industrious girl, who was earning seven dollars a week, which she bestowed upon her mother, to be used by her in supporting the family. No evidence is furnished of the age or physical condition of the mother, or that there were any other children than the decedent; nor does it appear that the decedent ever performed any services at home which were of any value from a domestic point of view. So far as we are advised by the record she simply earned a certain amount of money, of which she, in common with her father and mother, had the benefit. The important question, therefore, which the jury was called upon to determine was, what reasonable expectation of pecuniary benefit to be derived from the life of the deceased did the facts above recited justify % Their conclusion, as represented by their verdict, was that the actual money value of the deceased to the plaintiff was $6,000; and, as has been seen, the only fact which could properly have justified this conclusion was that which the evidence furnished of her earning capacity. We have endeavored by various calculations, which have been made in an atmosphere unaffected by appeals to passion, ]3rejudice or sympathy, to reconcile the result reached by the jury with our sense of justice; but when we come to consider the expectancy of life which this }3laintiff had a right to indulge in, we find that, even assuming that he would have received the entire amount of his daughter’s earnings during that period of time, the aggregate would fall far short of the amount awarded by the verdict. And, when we also consider that this source of income was quite likely to have been interrupted by loss of employment or the marriage, death or attainment of her majority, by the daughter, we are unable to resist the conclusion that the jury were, unconsciously no doubt, swayed by some other considerations than those which ought to have governed them; and we, therefore, feel constrained to revise their verdict. This determination is reached with some hesitation, but there can be no question as to either the power or the duty of the court to reduce a verdict which it deems clearly excessive, and the conceded facts of this case seem to leave no other alternative. (Coppins v. N. Y. C. & H. R. R. R. Co., 48 Hun, 292; affd., 122 N. Y. 557; Bailey v. R., W. & O. R. R. Co., 80 Hun, 4.) We think that §4,000 would be a most liberal estimate for the pecuniary damages sustained by the plaintiff in consequence of the death of his intestate ; and our conclusion is that the order appealed from should be reversed, unless the plaintiff stipulates to reduce the recovery to that amount; but that, in the event of his so stipulating, the order appealed from should be affirmed, without costs of this appeal to either party.

Judgment and order reversed on the ground that the damages are excessive, and a new trial ordered upon payment of costs by the defendant, unless the plaintiff shall stipulate to reduce the verdict for damages to §4,000, in which event the order and judgment, as so modified, are affirmed, without costs of this appeal to either party.

All concurred, except Follett, J., not sitting.

Judgment and order reversed and a new trial ordered, with costs to abide the event, unless plaintiff stipulates to reduce the verdict to §4,000, in which case the verdict, judgment and order, as so modified, are affirmed, without costs of this appeal to either party.  