
    SCHAFFER v. BAKER TRANSFER CO.
    (Supreme Court, Appellate Division, First Department.
    May 20, 1898.)
    1. Negligence—Injury to Child on Street—Evidence.
    In an action to recover damages for the death of the plaintiff’s intestate, a child about eight shears old, in consequence of the alleged negligence of the defendant, it appeared that, while the boy was skating on roller skates in a city street, he was run over by a wagon approaching from behind. The evidence as to details was conflicting, but the witnesses for the plaintiff testified that the horses were driven at a rate in excess of that allowed by the city ordinance, and with a slack rein, and that, while the boy was in the southerly part of the roadway, the northerly or right side was clear of obstructions. Held, that the evidence warranted a verdict for the plaintiff.
    2. Contributory Negligence.
    
      Held, further, that it could not be said, as matter of law, that the boy was guilty of contributory negligence, in failing to note that he was in a position of danger; for it was for the jury to say whether, if he had been aware of the approach of the truck, he had not a right to infer that it would pass him to the right.
    3. Excessive Damages—Death oe Child.
    The father of the boy was a driver. The verdict was for $6,000. Held, that as what it would have cost to provide for and educate the boy must be deducted from his earning capacity until majority, to arrive at the proper compensat.ory damages, the verdict was excessive, and a new trial should be granted unless the plaintiff consented to a reduction to $3,000.
    Appeal from trial term, New York county.
    Action by John A. Schaffer, as administrator, against the Baker Transfer Company. From a judgment in favor of plaintiff for $6,000, and from an order denying a new trial, defendant appeals.
    Affirmed on condition.
    Argued before PATTERSON, RTJMSEY, O’BRIEN, and INGRAHAM, JJ.
    William E. O. Mayer, for appellant.
    Arthur J. Harrison, for respondent.
   O’BRIÉN, J.

The plaintiff in this action seeks to recover, under the statute, damages for the death of his1 son, based upon the alleged negligence of the defendant. The question presented on this appeal is as to whether the plaintiff sustained the burden of proof by showing affirmatively that the death was due solely to the negligence of the defendant. The appellant contends that there was a failure to prove the defendant’s negligence, or that the negligence of the boy did not contribute to the accident. A statement of the facts, however, will show that upon both these questions there was a direct conflict of evidence between the witnesses produced by the respective parties, and that it was properly a question for the jury. According to the plaintiff’s witnesses, the boy, a bright lad of 8-¡- years of age, was seen about half-past 4 on Monday afternoon, April 15,1895, skating upon roller skates on the smooth, asphalt pavement of Broome street, in the city of New York. He was going in a westerly direction, towards Eldridge street and the Bowery, on the block between Allen and Eldridge streets, a little south of the middle of the street. While so engaged in skating, a team of horses going in the same direction, driven at the rate, according to one of the -witnesses, of 7 or S miles an hour, with the driver holding a slack rein, overtook the hoy about 30 feet from the northeast corner of Eldridge and Broome streets. He was knocked dotvn by the horse on the south side, and the front wheel on that side of the wagon went over his chest or neck, and killed him. There were other children' playing in the street at the time,—some of them, on roller skates. When first seen, the hoy was. from 5 to 10 feet in front of the horses On the part of the defendant, the driver testified that he never saw the boy at all; that he was run over by the north side of the wagon, which was stopped with its hind wheels exactly on the crosswalk of Eldridge street. Supporting the driver was the testimony of another witness that the hoy was standing in Broome street, about 2 feet from the curb of the north sidewalk; that this truck, proceeding at a walk, got nearly by, when the boy slipped, and fell in front of the rear wheel on the north side, and the rear wheel passed over his body; that the horses were stopped so suddenly that the wagon hacked, and the same wheel passed over him again; and that he was picked up between the front and the rear wheels. It is impossible, of course, to reconcile these different versions of the occurrence; the plaintiffs witnesses, three in number, making it clearly appear that the boy, while in front of the horses, was overtaken by them while going at a fast .gait,—the driver not having them under control, because holding a slack rein. It was not negligence, as a matter of law, for the boy to be in the street; nor, as matter of law, can it he said that he was guilty of contributory negligence in failing to note that the truck coining behind him at a rapid rate placed him in a position of danger. For if he had been aware of the approach of the truck behind him, and of its proximity, upon the evidence it was a question for the jury to determine whether he had not a right to infer, as there was nothing to prevent the truck from passing on the right side of the street, which at that time was not occupied by o 1 her vehicles, that the driver would select that passageway, in preference to running him down. The ordinance of the city regulating the sliced with which trucks should he driven on the streets in that locality was proven; and, if the plaintiff’s witnesses were credible, the driver of this truck was violating such ordinance. This, of course, did not prove negligence; but it was a circumstance, together with the other testimony presented, to go to the jury upon that question. There was therefore evidence bearing upon the question of the defendant’s negligence, and which tended to prove that the driver of the truck, while going through a thickly-populated neighborhood, over a street upon which many children were engaged at play, some using roller skates, proceeded at a rapid rate, without having his horses in hand so as to avoid running down and injuring them. The questions, therefore, having been presented by the learned trial judge to the jury in a charge which is unexceptionable, and the appellant having made no complaint as to the rulings upon evidence, there is no ground for interfering with the verdict of the jury.

The only question deserving consideration is the amount of the verdict, viz. $6,000. The plaintiff was entitled to compensation, not vindictive or punitive damages. For the death of a minor child the parent recovers the value of the child’s services during his minority, less the expense of his support. The plaintiff here, the father, was employed as a driver, and the boy was of a tender age. What it would cost the father to provide for and educate the boy must be deducted from the earning capacity of the boy until his majority. Giving the plaintiff the full benefit of all the elements that may be included in determining the pecuniary loss caused by the death of the son, the authorities are against any such large amount as was here awarded, considering the age and condition of the child. It is evident the jury misapprehended the instructions of the court upon the rule as to the measure of damages. And in a case like this their sympathies and indignation might well have been arounsed, after crediting the plaintiff’s version, which tended to prove that this little boy’s life was needlessly and negligently crushed out of him by a heavy truck driven by a man careless of human life. The harrowing details, however, so well calculated to arouse the feelings and touch the hearts of juries, must not permit us to overlook the rule of law which is as binding on them as upon an appellate court. It is the duty of a jury, as it is ours, to administer, not to make, the law. Where, therefore, as here, we find that elements such as extreme sympathy for the father, or prejudice due to the conduct of the defendant, have entered into the award, we are bound to correct the verdict. If the plaintiff desires to avoid a new trial, he can consent to a reduction of the verdict to $3,000, in which event the judgment, as so modified, should be affirmed, without costs; otherwise there should be a new trial, upon payment by the defendant of the costs of the former trial and of this appeal. All concur.  