
    Bridget Aherne, an Infant, Plaintiff, v. Charles Plate et al., Defendants.
    (Supreme Court, Kings Trial Term,
    April, 1901.)
    Kegligence — When nominal damages are inadequate.
    A verdict for nominal damages, in a case where substantial injury has be'en received by the plaintiff, must be set aside because, the absence of contributory negligence and the existence of their negligence having been found against the defendants, reasonable damages necessarily flow therefrom. The proper practice is for the court to refuse to receive such a verdict and direct the jury to find a verdict for substantial damages or for the defendant.
    Action for personal injuries received by being run over by a horse and wagon driven by the defendants’ servant. Motion foi a new trial for inadequate damages.
    
      -Bufus 0. Gatlin, for plaintiff.
    Potrasch & Burnet (Alvin G. Cass, of counsel), for defendants.
   Houghton, J.

The action is for personal injuries received by being run over by a horse and wagon driven by the defendants’ servant. The plaintiff is six or seven years of -age. and the injuries received were quite severe. The jury rendered a verdict for six cents. The plaintiff moves for a new trial because of inadequacy of damages.

I think the evidence presented a question for the jury to say whether plaintiff’s parents used proper care in allowing her to be in the street on the day in question, and also whether the defendants’ servant was negligent in his driving. The jury found in favor of plaintiff on these propositions, and thus she became ■entitled to a verdict sufficient to compensate her for the injuries which she sustained. Of course, six cents is not sufficient for •that purpose. Hor can the verdict be treated as one for the defendants. The essential facts being found for plaintiff, reasonable damages flow necessarily. Morris v. Metropolitan St. R. Co., 51 App. Div. 512; Saperstone v. Rochester R. Co., 25 id. 285. What is the better practice, and what should have been done in this case, is for the court to refuse to receive such a verdict, and instruct the jury either to render a verdict for substantial damages or find in favor of the defendants. The court has power over a verdict until recorded, and this course would secure a proper verdict, one way or the other, and avoid a new trial.

A verdict for nominal damages, when substantial injury has been received, cannot be treated as a verdict for the defendants, because the fact of negligence of the defendants and lack of contributory negligence has been found against the defendants and reasonable damages flow therefrom necessarily.

The motion for a new trial is granted, costs to abide the event.

Motion granted, with costs to abide event.  