
    (71 Hun, 114.)
    O’NEILL et al. v. BROOKLYN HEIGHTS R. CO., (two cases.)
    (Supreme Court, General Term, Second Department.
    July 28, 1893.)
    Damages—Injuries to Horse—Evidence.
    In an action against a railroad company for injuries to a horse, the-evidence of plaintiff and his brother, on which the extent of the injury almost entirely depended, if credited, called for substantial damages; but it appeared that, within a few days after the injury, plaintiff applied to a veterinarian to pronounce the horse sound, and the physician did not discover injuries to the extent claimed by plaintiff. Held, that a verdict for nominal damages should not be disturbed. Dykman, J., dissenting.
    Appeal from circuit court, Kings county.
    
      Two actions, one by James O’Mell against the Brooklyn Heights Railroad Company to recover damages for injuries to a horse caused by defendant’s negligence, and another by Edward O’Mell against the same defendant for personal injuries caused by defendant’s-negligence, both the result of the same accident, and tried together. From a judgment entered on the verdict of a jury in favor of plaintiff for nominal damages only, and from an order denying a motion for a new trial on the minutes, plaintiff in each case appeals-
    Affirmed.
    Argued before BARNARD, P. J., and DYKMAN, J.
    James P. Niemann, for appellants.
    Henry D. Hotchkiss, for respondent.
   BARNARD, P. J.

The extent of the injury to the horse alleged' to have been caused by the accident depended very much, if not entirely, on the testimony of the' plaintiff and his brother Edward, who was riding the horse when he was injured. It is true that these witnesses, if credited, would call for a substantial verdict, but the case shows that the plaintiff applied to a veterinary physician to pronounce the horse sound within a few days after the accident. The plaintiff says that he was requested to have this examination made by the physician at the request of one NcCoy, who knew of the injury the horse sustained, and wanted to buy him. The doctor did not discover the extent of the injury as claimed by the plaintiff. He said the horse was lame, but he discovered no dislocated hip. The jury had abundant reason for placing the injury at a nominal sum in case they discredited these two witnesses. The judgment should be affirmed, with costs.

DYKMAN, J.,

(dissenting.) Both of these actions are based upon negligence, and, as 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. John was in the employ of his brother James, who was the owner of a horse While John 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 John 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 five or six hundred dollars, previous to his injuries, and after that to be worth no more than one hundred. 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 o<r 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; Platz v. City of Cohoes, 8 Abb. N. C. 392; Cowles v. Watson, 14 Hun, 41. This 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 Proc. § 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’Neill should be affirmed, with costs; but the judgment and order denying the motion for a new trial in the case of James O’Neill should be reversed, and a new trial granted, with costs to abide the event.  