
    Jennie L. De Luna, as Administratrix, etc., of Maude Estelle Harris, Deceased, Respondent, v. Union Railway Company of New York City, Appellant.
    First Department,
    February 5, 1909.
    Damages — death caused by wrongful act — when verdict not inadequate.
    In lan action to recover for death caused by the wrongful act or-default Of another the damages are limited to such sum as the jury deems a,, fair and just Compensation for the pecuniary injuries sustained by the persons for whose benefit the action is brought.
    Where the decedent, a seamstress earning only nine dollars a week and having no -estate, left surviving only an elder brother- and a married sister to whose support she had never contributed, a verdict for the amount of the funeral expenses, paid by said next of kin, should not be set aside as inadequate.
    Pattersón, P. J., dissented.
    Appeal hy the defendant, .the Union Railway Company of Hew York City, from an order of the Supreme Court, made at the Hew York Trial Term and entered in the office of the clerk of the county of Hew York on the 8th day of June, 1908, setting aside as inadequate a verdict of the jury in favor of the plaintiff and granting a hew trial.
    
      Bayard H. Ames [ Vine H. Smith with him on the brief], for the appellant.
    
      Herbert R. Limburg, for the respondent.
   McLaughlin, J.:

This action was brought to recover the damages caused by the death of the pl'aintiffis intestate. At the opening of the trial the defendant, through its counsel, admitted that the "death -of the intestate was caused by the defendant’s negligence, so that the only question litigated was the pecuniary loss sustained by the next of kin. Upon this issue there was bnt little evidence. It consisted solely of the testimony of the plaintiff and her husband, from Which it appeared that the intestate, at the time of her injury, was thirty-two years of age and unmarried ; that her next of kin consisted, of the plaintiff, a 'brother, and another married sister, all of thenij with the exception of one sister, her senior; that for about three years immediately prior to the accident she had been employed as a seamstress at a salary of $9 per week; was assistant to the foreman, and next in line of promotion in the department where she worked when the accident occurred; that during all that time she had lived with the plaintiff and her husband, paying $4 a week for her board; that she left no estate whatever; and that the funeral expenses amounted to $189.75, which were paid by the plaintiff.. The jury rendered a verdict for $189.75, which, on motion of plaintiff’s counsel,'the court set aside as inadequate and granted a new trial, and the defendant appeals.

The damages to be awarded in case of death caused by the wrongful act, neglect or default of another, are limited to “ a fair and just compensation for the pecuniary in juries, resulting from the decedent’s death, to the person or persons, for whose benefit the action is brought.” .(Code Civ. Proc. § 1904.) And' this must be determined from the evidence which, as a general rule, is limited to “ the age and -sex, the general health and intelligence of the person killed, the situation and condition of the survivors and their relation to-the deceased.” (Houghkirk v. President, etc., D. & H. C. Co., 92 N. Y. 219.) The damage in such case being regulated by statute, which creates the cause of, action, is expressly limited to such a sum as the jury deems to be a fair -and just compensation for the pecuniary injuries sustained by the persons for whose benefit the action is brought. (Code Civ. Proc. §§ 1902-1904.) In construing a similar statute (Laws of 1847, chap. 450, as amd. by Laws of 1849, chap. 256, and Laws of 1870, chap. 78) the Court of ' Appeals, speaking through Judge Finch in the HougKkirh case, said: “ Recognizing the generally prospective and indefinite character of those damages, and the impossibility of a basis for accurate estimate, it allows a jury to give what they shall deem a just compensation. * * * The damages to the next of kin in that respect are necessarily indefinite, prospective and contingent. They cannot be proved with even an approach to accuracy, and yet they are to be estimated and awarded, for the statute has so commanded. But even in such case there is and there must be some basis in the proof for the estimate, and that was given here and always has been given. Human lives are not all of the same value to the survivors.”

In the case now before us the jury, having fully considered all the evidence which was offered bearing upon the loss sustained by the persons for whose ‘benefit the action is brought, found that it was' the amount of the verdict rendered. There is nothing to show, nor is it even suggested, that they were improperly influenced or controlled by anything except the evidence in the case and a proper discharge of their duties. I • am unable, therefore, to see how the court can say that the verdict is inadequate. So far as appears, the deceased had never contributed anything to the support of her next of kin, or any of them, nor does it appear that she was able to do so had she been so disposed; on the contrary, it is fairly to be inferred, inasmuch as she left no estate whatever, that her earnings were barely sufficient for her own support and maintenance. Both sisters were married and there was a legal obligation on their husbands to support them. Her brother was her senior and his earning capacity must have been equal to, if not • greater than, hers. The case, therefore, is to be distinguished from one brought to recover the damages sustained by the death of one.who is supporting, or upon whom rests the obligation of support and maintenance. “We are not,” as was said by Mr. Justice Ingraham in Terhune v. Cody Contracting Co. (72 App. Div. 1), “now engaged in ascertaining. the value of human life, nor in punishing a person whose negligence has caused the death of-a'human being. We are bound by the express provision of this statute which limits a recovery to the pecuniary loss caused to the next of kin by the decedent’s death; and while we cannot say that the death of a particular human being has caused his next of.kin no pecuniary loss, we are equally unable to say in the case of the killing of a young child under six years of age. that the death of the child has caused pecuniary loss to the child’s parents. In such a case the question under proper instructions must be left to a jury, and their verdict, in'-the absence of any evidence to justify an inference -that it was rendered under a misconception of the question submitted to them or influenced by prejudice or sympathy, or other influences than that of a desire to fairly estimate the loss sustained, should not be interfered with.”

Here, the jury estimated the pecuniary loss at $189.15. This happened to be the exact amount of the funeral expenses paid by the plaintiff and very likely was the basis of the jury’s- award. It was their estimate of the loss sustained by the persons for whose benefit the action was brought, and upon the facts set out- in the record I do not see how it can be said their estimate is erroneous. The case was fairly submitted to the jury and no errors were committed during the trial which justified an interference with the verdict. Upon the record as it comes to ns, it seems to me the action of the trial justice in setting aside the verdict was not justified.

If I am correct in this, then the order appealed from must be reversed and the verdict reinstated, but, under the circumstances, without costs.

Ingraham, Clarke and Houghton, JJ., concurred; Patterson, P. J., dissented.

Order reversed and verdict reinstated, without costs.  