
    Katharine McIlwaine, as Administratrix, etc., of David McIlwaine, Deceased, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Negligence—proof that a person,'injured wasin.ihe habit of becoming intoxicated — when a slight error on a question of damages requires a new trial.
    
    In an action to recover damages resulting from the death of the plaintiff's intestate, a cah driver, twenty-nine years of age, who left a widow, two sisters, two .brothers and a father, but no children, the defendant is entitled to examine the proprietor of the livery stable in which the decedent was employed during the last two years of his life, as to whether the decedent had been in the habit of getting intoxicated.
    Where, on the trial of such an action, the jury awards a verdict so large as to border on what would be an excessive amount, the court will grant a new'trial for an error in the reception or rejection of evidence relating to the question of damages, even though the erroneous ruling might be disregarded in other' cases upon the ground that no substantial prejudice resulted therefrom. ' .Patterson, J., dissented.
    Appeal by the defendant, the Metropolitan Street Railway 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 27th day of January, 1902, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 10th day of February, 1902, denying the defendant’s motion' for -a new trial made upon the minutes'.
    
      Charles F. Brown, for the appellant.
    
      Warren Leslie, for the respondent.
   Laughlin, J.:

This is a statutory action to recover for the death of David Mcllwaine which is alleged to have been caused through the negligence of the defendant.

Whether the decedent was free from negligence and whether his death was caused by the negligence of the defendant were fair questions of fact which were properly submitted to the jury. The case appears to have been tried with ability and care not only on the part of the court but on the part of the counsel. There is, however, an exception that requires a reversal.

The decedent was twenty-nine years of age and his occupation was that of a cab driver. He was married, but had no children, and left besides his widow, two sisters, two brothers and a father. His wages were twelve dollars per week, but the evidence indicated that his income was increased to seventeen or eighteen dollars per week by tips. The jury awarded $10,000 for the damages sustained by the widow and next of kin. While it may be that the verdict could be sustained if no error had been committed on the trial affecting the question of damages, yet it may be fairly said that the verdict is large and borders on excessiveness. In such circumstances a new trial should be granted for error in the reception or rejection of evidence relating to the question of damages, even though the erroneous ruling might be disregarded in other cases upon the ground that no substantial prejudice resulted therefrom.

The proprietor of the livery stable in whose employ the decedent had been during the last two years of his life was called by the defendant. With reference to the decedent he was asked by defendant’s counsel, “ Did he use to come in intoxicated at the end of his day when he had been driving ? ” This was objected to as incompetent, irrelevant and immaterial. Before the court ruled upon the objections the defendant’s counsel said, I don’t mean right along, but at times?” This question was further objected to on the groühd that the decedent had been in the employ of the witness for two years and that the evidence called for did not affect his earning capacity. The defendant’s counsel insisted that the evidence was competent as having a bearing on the value of the decedent’s life, claiming that if he was in the habit of drinking and getting intoxicoted on occasions that, liad a bearing on the value of his life. The objection was sustained and the defendant’s counsel duly excepted.

We think that the evidence should have been received and that in the circumstances its rejection ■ constituted reversible error. In this class of cases where the verdict of a jury is a mere estimate based largely, upon speculation as to the future health, length of life, family relations, earning capacity and probable savings of the decedent, great latitude should be allowed in the presentation of evi-' dence that may aid the jury in the determination of any of these questions. The precise question as modified, which was excluded by the court, did not call for evidence relating to the habits of the decedent with reference to the use of intoxicating liquors that amounted to a daily custom ; but it is manifest that the counsel for the defendant expected to show something more than an occasional use of liqqor and that the court by the ruling to which exception was taken intended to exclude any evidence on the subject.

It is common knowledge that the use of intoxicating liquors to any extent has a bearing upon the ability of the subject to withstand certain kinds of illness and disease. In estimating the probability as to the decedent’s future health and the duration of his life, the jurors were called upon to consider the probabilities as to his becoming ill, which involved his susceptibility to disease, and his ability to withstand the ravages of disease. His use of intoxicating liquors had a ■bearing upon this subject, the importance of its bearing depending upon the extent of the use. Moreover the habits of the decedent with reference to the use of intoxicating liquors, which involved the expenditure of p>art of his earnings, would throw some light both upon the question as to the probable amount of his savings and the amount of money which he would contribute to his family, and also upon the question as to the amount of his earnings, the weight of the evidence depending of course upon the extent to which he indulged in such liquors. Furthermore, in view of the decedent’s occupation, if he was in the habit, even though only occasionally, of becoming intoxicated while in the performance of his duties, the ■ jury had a right to take. that into consideration in weighing the chances of his death by accident or the impairment of his capacity to earn money by injury. The question called for facts in the history of decedent’s life which would be indicative of his habits or customs and which were proper for the consideration of the jury .on the question of pecuniary loss sustained by the widow and next of kin.

The judgment and. order should be reversed and a new trial granted, with costs to appellant to abide the event.

Van Brunt, P. J., Ingraham and Hatch, JJ., concurred; Patterson, J., dissented.

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