
    Grace McDonald, as Administratrix, etc., Plaintiff, v. The Metropolitan Street R. Co., Defendant.
    (Supreme Court, New York Trial Term,
    January, 1902.)
    Negligence — Damages for the death of a boy aged 12 years reduced from $12,000 to $7,500.
    The pecuniary loss to the next of kin of a healthy, ordinarily bright and fairly industrious boy, aged twelve years and earning three dollars a week which he turned over to his mother, resulting from his death caused by tne negligence of a corporation, is more than compensated by a verdict against it for $12,000, and the verdict should be reduced to $7,500.
    Motion for a new trial on the ground of excessive damages, in an accident case.
    Henry L. Scheuerman, for motion.
    M. P. O’Connor, opposed.
   Gildersleeve, J.

The action was for damages caused by the death of John McDonald through the negligence of the defendant corporation’s agents and employees. The jury gave a verdict for $12,000 in favor of the plaintiff. The defendant makes a motion for a new trial on the ground of excessive damages. The deceased was a boy of twelve or thirteen years, in perfect health, of an ordinarily bright mind and fairly active, industrious disposition. At the time of his death, he was earning about three dollars a week, which he turned over to his mother, the plaintiff herein. The jury, after hearing all the evidence, decided that the pecuniary injury to the next of kin, both present and prospective, caused by the death of this child, was $12,000. The defendant urges that this amount, with interest from the death of the child, allowed by section 1904 of the Code, and with the costs and extra allowance, will bring the judgment up to about $17,000. Plaintiff urges, however, that these extra sums should not be taken into consideration here, for the pecuniary value of the life of the child, as found by the jury, was $12,000 and not $17,000, and that it is the first amount only that we have now to consider. As pointed out by the plaintiff’s counsel, there is no fixed rule to determine what amount of damages should be allowed in actions of this character. Each particular case must be determined from its own facts, and the amount to be awarded is peculiarly one for the jury. Birkett v. Knickerbocker Ice Co., 110 N. Y. 504, 508. The pecuniary damages to the next of kin are necessarily indefinite, prospective and contingent, and cannot be proved with even an approach to absolute accuracy. When the court is called upon to review the amount of the damages awarded by the jury, the difficulty is to find a test by which to do so.' The defendant’s counsel refers to a number of cases in which the General Term and Appellate Division have reduced the awards allowed by juries in actions of this character, and he urges that it is the duty of the trial court, upon this motion, to consider fully and carefully the question of excessiveness, and, if it appears that the verdict is excessive, to reduce the amount thereof or to grant a new trial. It is unquestionably true that the judgment of the jury as to the amount of damages is not an uncontrollable one, but is subject, if abused or not properly exercised, to be reviewed and modified in the court of original jurisdiction. Birkett v. Knickerbocker Ice Co., 110 N. Y. 504. If the jury did not merely consider the pecuniary injury sustained by the next of kin, but went further, and, through passion, sympathy, partiality or prejudice, considered other elements which should not have affected their verdict, the trial court will be fully warranted in granting this application of the defendant herein. Upon all the testimony in the case at bar, I am inclined to find that the verdict indicates such evidence of passion, partiality, prejudice or sympathy on the part of the jury as calls iipon the trial court to reduce the amount of the verdict or grant a new trial. To my mind the verdict seems excessive. The case of Morris v. Metropolitan St. R. Co., 63 App. Div. 78, presents a somewhat similar state of facts and is a precedent which may well serve as a guide in fixing the amount of the damages in the case at bar. There the Appellate Division approved the award of $7,500. An order may be entered granting a new trial unless plaintiff stipulates to reduce the verdict to $7,500.

Ordered accordingly.  