
    FRANKLIN A. SLOAN, Plaintiff, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Defendant.
    
      Common cairier—Negligence—Bight of husband to recover for injuries to wife— Excessive damages.
    
    Where a wife is injured by the negligence of a common carrier of passengers, the husband is entitled to recover for the loss of her'services resulting therefrom.
    Proof of her pain and suffering is admissible, to prove the extent of the injury and the duration of the loss of service.
    In an action of tort, the court cannot reduce the verdict of a jmy, because it is deemed excessive. The only remedy, in such a case, is to set it aside and order a new trial.
    Motion for a new trial, on exceptions ordered to be heard in the first instance at General Term.
    The plaintiff’s wife was injured while riding in the defendant’s cars; and, for the loss of her services occasioned thereby, the plaintiff brought this action.
    After the opening of the cause at the trial, the defendant moved for a nonsuit, on the ground that the plaintiff’s wife had recovered a judgment in the Supreme Court for the sum of $14,000, for the same inj ury to her, described in the pleadings in this cause, which judgment had been paid. The motion was'j opposed on the ground that the plaintiff was entitled to a separate action for his damages.
    The court denied the motion, and the defendant excepted.
    The defendant’s counsel asked the court to charge, that, “ under the recent acts of the legislature, the wife alone can maintain an action for her own injuries, and all the consequences to her in all relations, as well to her husband and children, as to herself.”
    The court declined to so charge, remarking: “ I hold that the wife may sustain an action for her personal injuries of a physical character, but not in regard to her husband’s injury in the loss of her services.”
    The defendant excepted.
    Defendant further requested the court to charge, that, “ in so far as the consequences to her are shared by her husband, the legislature has given us no dividing line by which to distinguish what is recoverable by her, and what by him, and the jury, having the fact of the former recovery by her, are bound to render their verdict for the defendant.”
    The court refused the request, remarking, in reference to it, that “ the wife is not entitled to recover anything that belongs to the husband; what particularly relates to the husband can be recovered by him; and the husband cannot recover anything that belongs to the wife.”
    The defendant excepted.
    The defendant then asked the court to charge, that “ the wife has a right under our laws to retain and enjoy the commercial value of her own services, with or without the consent of her husband, and he has no right to compel such services for his own benefit, or to recover here for their value.”
    The court declined to so charge, and said that “ the proposition has nothing to do with this case.” The defendant excepted.
    The jury found a verdict of $10,500 for the plaintiff.
    
      Thereupon, the defendant moved to set aside the verdict, on the grounds that it was contrary to the evidence; that the evidence was insufficient; and that the damages were excessive.
    The motion was denied, and the defendant excepted.
    The exceptions were ordered to be heard, in the first instance, at the General Term.
    
      John U. Ma/rtindale, for the plaintiff.
    
      James B. Cox, for the defendant.
   Mmmrtf, P. J.:

The Court of Appeals, in the case of Filer v. The N. Y. Central R. R. Co., decided that a husband is entitled to recover for the loss of service of his wife, resulting from injuries caused by the negligence of a carrier of passengers. This question is therefore at rest, and cannot be permitted to be again discussed. It is doubtless true, that a husband is not entitled to recover for the pain and suffering endured by his wife, but proof of this pain and suffering is, or may be, not unfrequently admissible, to prove the extent of the injury and the consequent duration of the loss of service.

The court cannot, in an action of tort, reduce the verdict of a jury, because it is deemed excessive. The only remedy in such a case, is to set it aside and order a new trial. The damages awarded by the jury are large, but not excessive. It is impossible to lay down any rule, by which to determine when a verdict is excessive. Every case must be decided upon its own facts, and the jury are much the best judges of what amount of damages will be given to the injured party in redress for the wrong suffered, and, unless it is so large as to excite suspicion at its injustice, the court ought not to interfere.

The wife of the plaintiff was thirty-two years of age at the time of the injury. If the plaintiff’s wife should live until she was of the age of three, score years and ten, the plaintiff would receive her services for thirty-eight years, if she retained her mental and physical powers; and her services in the home of him and his household, would not be extravagantly paid, by an allowance of $500 per year, including her support. It is true that a servant could be employed for a much smaller sum, but the services of the hireling would fall far short of being of the value of those of an affectionate, intelligent and prudent wife. By the annuity tables, her life would be estimated as continuing for about twelve years. This verdict would allow the husband $1,000 per year, out of which he must support her, and furnish her such care and assistance, and medical aid, as she may require, and be deprived wholly of any services from her. I cannot, in view of these considerations, say that the jury have awarded the plaintiff an unreasonable measure of damages.

This case is one of several, to which my attention has been recently drawn, in which the jury, at a second trial, have awarded a much larger amount of damages than upon the first, and it is becoming quite important to defendants, to ascertain what induces this action on the part of juries. Does the resistance of defendants to a recovery, by repeated appeals, excite the prejudices of the jury, and lead them to punish the offender by an increase of the verdict ? If this should prove to be the explanation, it would be a new and alarming phase of trial by jury, and cannot fail to bring it into disrepute. It is unnecessary to say that a jury have no right to inquire into the character, condition or motives of a defendant, in an action before them, unless it comes before them legitimately on the trial.

The court cannot assume that the jury have violated their duty, because, in a few instances, the verdict on a second trial is larger than upon the first, even when the evidence in each is substantially the same; but it behooves the' court to scrutinize the action of juries in cases of tort, when satisfied that injustice has been done, to protect defendants against it.

I do not think the ruling on the trial, or the charge of the court, makes it proper for us to set aside the verdict.

A new trial is denied, and judgment ordered for the plaintiff on the verdict.

New trial denied, and judgment ordered for plaintiff. 
      
       49 N. Y., 42. [See, also, Brooks v. Schwerin, 54 N. Y., 343.—Rep.]
     