
    Mary Phalen, as Administratrix, etc., of Mary Dunn, Deceased, Respondent, v. Rochester Railway Company, Appellant.
    
      Negligence — a verdict of §800 for the death of an aged woman, supported by her children, is not excessive.
    
    Where a woman sixty-eight years of age, in fair health and capable of assisting in household affairs, who,, having reared her children and seen them settled in life, was spending her declining years living around among such children, some of whom afforded her pecuniary assistance to make her life comfortable, was killed through the negligent act of a railroad company, 9, verdict of §800, recovered by her administratrix, will not be set aside by the court as excessive. Follett and Green, JJ., dissented.
    Appeal by the defendant, the Rochester Railway Company, from a- judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 30th day of December, 1897, upon the verdict of a jury for $800, and also from an order entered in said clerk’s office on the 13th day of December, 1897, denying the defendant’s motion for a new trial made upon the minutes.
    The action was brought to recover damages for the negligent killing of the jilaintiff’s intestate by reason of injuries received upon one of the defendant’s cars on the 13th of April, 1897. The deceased died on the 22d day of June, 1897.
    
      Charles J. Bissell, for the appellant.
    
      C. D. Kiehel, for the respondent.
   Ward, J.:

It is conceded upon this appeal that the death of the • plaintiff’s intestate was caused by the negligence of the defendant in operating a car upon which the deceased was riding, and the sole question presented by the learned counsel for the appellant upon this review is, whether the damages of $800 awarded by the jury were excessive under the circumstances of this case, the claim being that under the evidence it appears that the deceased was an old lady of about seventy years of age ; that she was afflicted with heart disease so far advanced that her death might occur at any moment; that she was supported by her children and next of kin, and that she did not and could not, from the condition of her health and her advanced years, have under any circumstances been of any pecuniary assistance or value to the next of kin, and the plaintiff should not recover in this action any damages except for the funeral expenses of the deceased, amounting to about seventy dollars.

Upon this review we must regard the facts and the inferences from the facts as presented upon the trial favorably to the plaintiff, as the jury had the right to consider them in arriving at its verdict. Those facts were substantially as follows :

The deceased was a lady of about sixty-eight years of age at the time of her death. She was living at the time in Rochester with the plaintiff, Mary Phalen, her daughter, a married lady with a family, where she had lived about two years; she had had two husbands. The first was the father of six children, three sons and three daughters; two of the sons and two of the daughters resided in the State of California, one son in the State of Idaho. The mother (the deceased), before she went to live with the plaintiff, had resided with some of her children in California. During the time that the mother lived with the plaintiff, one of the California sons had sent her money to some extent for her support; the mother was in fair health, and rendered assistance to her daughter in her household affairs. There was some evidence tending to show that she had fatty degeneration and dilitation of the heart accompanied with asthma, which produced, at times, short breathing, but it was not very pronounced, and did not interfere with the usual discharge of her duties and work to any great extent. Her heart withstood the terrible shock of the accident and the suffering which followed, which was a pretty good indication that the heart disease was not so far advanced but that she might have lived many years and been of service to her children, but for the injury which terminated in her death.

The deceased had separated from her second husband (Mr. Dunn) several years before her death, during which time he had rendered her no support and she had rendered him no service.

Upon these facts we are to determine whether it is our duty to interfere with this verdict, for the reason that it was excessive. Aside from the numerous decisions of the courts of this State upon the subject, we have the statutory guide as to the damages in such cases. Section 1904 of the Code of Civil Procedure provides that “ The damages awarded to the plaintiff may be such a sum as the jury * * * deems to be a fair and just compensation for the pecuniary injuries resulting from the decedent’s death, to the person or persons for whose benefit the action is brought.”

It is not for the wrongdoer to measure the damages resulting from the death which its negligence has caused by the cost of burying the dead, nor will the appellate court assume the duty which the statute has imposed upon the jury to ascertain those damages. This court will only interfere when the damages are so excessive as to shock its sense of justice, or indicate prejudice or passion on the part of the jury.

Between the bare allowance for funeral expenses and the excessive verdict which shall challenge the interference of this court, there is a wide domain in which the jury is supreme. It is often difficult, from the evidence, for the court to see upon just what basis the jury has reached its conclusion as to the amount of damages, but that was the problem with which the jury liad to wrestle.

It is sometimes said that the jury must not indulge in speculation, nor found its verdict upon improbable contingencies. This is true in a sense, yet the element of contingency, near or remote, does and must enter into every calculation which involves human life and human action. This calculation is for the jury. Then, too, the jury while considering only the pecuniary aspects of the case must, to a certain extent, determine what is • pecuniary under the circumstances of each case.

In Tilley v. The Hudson River R. R. Co. (29 N. Y. 286-287) the Court of Appeals said : “A liberal scope was designedly left for the action of the. jury; they are to give such damages as they shall deem a fair and just compensation with reference to the pecuniary injury resulting from such death; they are not tied down to any precise rule. Within the limit of the statute as to amount, and the species of injury sustained, the matter is to be submitted to their sound judgment and sense of justice. They must be satisfied that pecuniary injury resulted. If so satisfied, they are at liberty to allow them from whatever source they actually proceeded which could produce them. If they are satisfied from the history of the family or the intrinsic probabilities of the case, that they were sustained by the loss of bodily care or intellectual culture, or moral training which the mother had before supplied, they are at liberty to allow for it. The statute has set no bounds to the sources of these pecuniary injuries. If the rule is a dangerous one and. liable to abuse, the Legislature, and not the courts, must apply the corrective.”

And in the same line is Quin v. Moore (15 N. Y. 435, 436); Tilley v. Hudson River R. R. Co. (24 id. 475); Lockwood v. The New York, Lake Erie & Western Railroad Company (98 id. 523).

In the last case cited the intestate at the time of his death was about sixty-eight years old and left seven children, all adults, and all but two of them living away from home; those living away from home received no support from the father, but were supporting themselves and had been for years. It was held that this state of facts did not preclude a recovery by the next of kin. The trial court had refused to charge that, where the children were of full age and living away from the home of the deceased, and are supporting themselves, no such pecuniary loss has been sustained by them as could be recovered for in that action. This refusal was sustained by the Court of Appeals, and Earl, J. (at p. 526), says: The courts have found it impossible to lay down any definite guide for the jury in estimating damages under the act in question, and we will not attempt it now. * * - * Whatever the rule may he in other States, there are many cases in this which in principle sustain the rulings of the trial judge in receiving the evidence objected to and in refusing to charge as requested,” citing many cases.

And as bearing upon this question see Lyons v. Second Avenue Railroad Co. (89 Hun, 374; affd., 152 N. Y. 654); Dickens v. N. Y. C. R. R. Co. (1 Abb. Ct. App. Dec. 504), which holds that the next of kin are not limited to nominal damages although there is no positive evidence of pecuniary loss.

In the case at bar the mother having reared her children and seen them settled in life, was spending her declining years living around among them, some of her children affording her pecuniary assistance to make her life- comfortable. The fact that they had dutifully done so, does not detract from their right to recover damages in this action. It might well be that when sickness or misfortune should render the care or assistance of this mother necessary, she would be in a condition to render it and this would certainly be a pecuniary benefit. But we will not indulge in anticipations of the many ways in which the jury might see how the deceased could render piecuniary aid to her sons and daughters. They had the right to that aid and to the preservation of her life as long as Providence should permit.

We are referred to no case where the court has interfered to set aside a verdict as excessive in this amount in an action of this kind. Reference may be had to cases where damages on slight proof of' pecuniary damage have been awarded to a much greater extent in this class of actions, and sustained on appeal.

But it is suggested by the learned counsel for the appellant that a different rule should prevail since the §5,000 limitation was. abolished by the Constitution, and that most of the decisions to which we have referred were under the §5,000 limitation; that that limitation constituted a sort of statutory license to the juries to render their verdicts in any sums up to the §5,000. This we apprehend is. the scope of his argument and we cannot assent to it. The court before and after the constitutional change have supervised verdicts- and set them aside or modified them in cases of this character without reference to the constitutional change or the former limitation.

We held this in effect in Howell v. Rochester Ry. Co. (24 App. Div. 518).

We have reached the conclusion that the verdict was not so far-excessive as to justify us in interfering with it, and that the judgment and order appealed from should be affirmed.

Hardin, P. J., concurred; Adams, J., concurred in result; Follett and Green, JJ., dissented.

Follett and Green, JJ. (dissenting) :

The verdict is greatly in excess of any “ pecuniary injuries ” shown to have resulted from the decedent’s death. The uncontradicted evidence is that the decedent was a pecuniary burden upon her children, and under such circumstances we are unable to see-how her death caused pecuniary injuries to them beyond the expenses. ■of her sickness and burial. Logically, we can see no difference between this case and one in which the next of kin should have supported their mother in a charitable institution.

The judgment should he reversed and a new trial ordered, with costs to the appellant to abide the event of the action.

Judgment and order affirmed, with costs.  