
    Joseph B. Reger, as Adminstrator, etc., of Louisa Reger, Deceased, Respondent, v. The Rochester Railway Company, Appellant.
    
      Hegligence-^ measure of damages where an injured child is three and one-half years of age.
    
    In an action brought to recover damages resulting from the death of the plaintiff’s intestate caused by the alleged negligence of the defendant, a street electric railway company, it appeared that the deceased was a child of the plaintiff, of the age of three and one-half years; bright, intelligent, active and in good health; that she resided with her parents and four brothers and sisters, all under the age of eight years; that the plaintiff was a cabinet maker thirty-four years pld, and earned eleven dollars a week. Beyond these facts there was nothing to show the pecuniary value of the child to her next of kin. The jury returned a verdict for the plaintiff fer the sum of §375.
    
      Held, that the verdict should be allowed to stand;
    That in such a case where the child had no earning capacity there was no rule under which the amount of the verdict could be determined, except such as rested in the good sense of the jury.
    Appeal by the defendant, The Rochester Railway Company, from an order of the Supreme Court, made .at the Monroe Circuit upon the minutes of the court in the above-entitled action and entered in the office of the clerk of the county of Monroe on the 5th day of February, 1895, setting aside a verdict for $375 in favor of the plaintiff and granting a new trial on the sole ground that the verdict was inadequate.
    This action was brought under the statute to recover damages for the alleged negligent killing of the plaintiff’s intestate, who was a daughter of plaintiff.
    April 21-, 1893, plaintiff’s intestate was killed by one of the cars operated by the defendant, which is a railroad corporation operating a line of railway by electricity in the city of Rochester. Issues .were joined upon the question of the defendant’s negligence, of intestate’s contributory negligence and that of "her parents.
    The evidence upon those questions was conflicting and was submitted to the jury. . The jury rendered a verdict in favor of the plaintiff for the sum of $375.
    All the testimony given by the plaintiff' upon the question of damages was this: The child was three and a half years old; bright, intelligent, active and in good health. She resided with her parents and her. brother and sisters. ■ The other children were ■Elizabeth, seven years old; Margaret, five, years old; Edward, two years old, and Minnie, one year old.
    The father was.thirty-four years old in January, 1894, and' at the time of the accident Avas working for a furniture company. He was a cabinet maker by trade and earned eleven dollars a week.
    
      Charles J. Bissell, for the appellant.
    
      John Van Voorhis, for the respondent.
   Green, J.:

The sole question here presented is whether this court can say as matter of law that the jury violated any rulé in giving the amount of damages which they did give¡, or that they should' have given more.

That the Supreme Court has the poAver in a proper case to set aside a verdict where it is excessive or inadequate, is conceded: but this power is exercised within well-defined limitations. The court is justified in interfering Axdth a verdict of a jury only in those cases where it appears that the jury, in fixing the amount of the verdict, were actuated' by prejudice, passion, partiality or corruption, or failed to understand and apply the rule of damages appertaining to the case; or where it can be clearly seen from the record that, under all the circumstances of the case, the amount "awarded Avas. unreasonable and unfair. '

Applying this rule to the case at bar, the verdict of the jury is subject to no criticism which xvould justify the court in interfering with it.

There are many cases brought under the statute where the evidence is such that the question of damages may be fixed with some reasonable degree of certainty; as in the case of an adult Avhere the jury have before them evidence of the earning capacity and the age and condition in life of the deceased. Rút in the case of a child of three and a half years, the evidence upon the question of damages must necessarily be indefinite and to some degree uncertain.. The age, the -sex of the child, her physical condition and the condition and circumstances of the parent of the child, constitute the evidence upon which the jury must fix the amount of damages. In this case the child has never had any earning capacity and possibly might never have had such.

In estimating the pecuniary value of this ekild to her next of kin, the jury could take into consideration all the probable or even possible benefits which might result to them from her life, modified, as in their estimate they should be, by all the chances of failure and misfortune. There is no rule but their own good sense for their guidance.” (Birkett v. Knickerbocker Ice Co., 110 N. Y. 501.)

The jury were bound to confine themselves to the evidence given upon the question to be decided. It was their duty to consider the same and pass their judgment upon it. Their determination must not be the result of mere speculation, conjecture or guess work. The foundation upon which they must build their verdict is the evidence. ■

In view of the somewhat indefinite and uncertain character of the evidence, we are of the opinion that this case is peculiarly one for the consideration of a jury; and one where the determination of a jury should be conclusive. Ho safer tribunal than the experience, good sense and judgment of twelve men can be found for the determination of the question of damages in a case of this character.

So far as appears from the record the jury considered that somewhat difficult question and arrived at a verdict which, to them, fairly represented the pecuniary damages sustained by the next of kin. They had before them all the elements of damages properly involved in the plaintiffs claim. They violated no rule governing them in arriving at their conclusion, nor does it appear from their verdict or from the record presented to the court that they passed beyond the limits prescribed within which they must exercise their functions.

The court might have been better satisfied with a larger verdict. But this alone furnishes no sufficient reason for invading the province of a jury and substituting the opinion of the. court for that of the jury.

We are of the opinion that the verdict of the jury was conclusive and that the order setting aside the same should be reversed.

All concurred.

Order reversed, with costs.  