
    Charles B. Morris, as Administrator, etc., of Leslie B. Morris, Deceased, Appellant, v. The Metropolitan Street Railway Company, Respondent.
    
      Negligence — a verdict of six cents for the death of a boy of sixteen held to be inadequate — what claim in support of the verdict cannot be made by a defendant who does not appeal.
    
    In an action brought to recover damages resulting from, the death of the plaintiff’s intestate, it appeared that, at the time of his death, he was sixteen years of age, five feet eleven inches in height and weighed 140 pounds; that he was strong and healthy, very active and very intelligent, was attending school and expected to graduate therefrom in about six months; that for five or six weeks during his summer vacations, and very often on Saturdays, he assisted his father in his business of dealing in grain and feed, and that he took his brother’s place when the latter was on a vacation; that he received no compensation for his services to his father and earned no money elsewhere; that ■ his father supported him, paid the expenses of his education, and, being in prosperous circumstances, had no present need of support from the intestate. Held, that a verdict for six cents damages was inadequate;
    That the defendant, not having appealed from the judgment entered upon, the verdict, was concluded thereby, and that its contention that the verdict should be sustained upon the ground that the plaintiff - had failed to prove a cause of action, or that the evidence preponderated in favor of the defendant, could not be considered by the Appellate Division.
    
      Appeal by the plaintiff, Charles B. Morris, as administrator, •etc.., of Leslie B. Morris, deceased, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the' 19th day of June, 1899, upon the verdict of a jury for six cents damages, and also from an order entered in said clerk’s office on the 6th day of July, 1899, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Edmund Luis Mooney, for the appellant.
    
      Charles F. Brown, for the respondent.
   Hatch, J.:

The only point involved upon this appeal is the question of the inadequacy of the damages which have been awarded by the jury. The action is brought by the father of the deceased, suing in a representative capacity,'to recover damages on account of the negligence of the defendant in causing the death of his son. Upon the merits the jury found in favor of the plaintiff, and by their verdict assessed his damages at the sum of six cents. The plaintiff moved to set the verdict aside upon the ground, mainly, that the damages awarded were inadequate. The motion was denied, and from the judgment entered upon the verdict and the order denying the motion for a new trial the plaintiff appeals. No appeal was taken by the defendant.

It appeared upon the trial that the deceased was past sixteen years of age at the .time of his death, was five feet and eleven inches in height and weighed 140 pounds •— unusually large for a boy of his age. He was strong and healthy, very active and very intelligent.' He had been at school, but expected to graduate in the summer following his death, which occurred on the 9th of December, 1898. In the summer months for five or six weeks during vacation time he assisted his father in his business of dealing in grain and feed, and very often upon Saturdays when there was no school; and he took his brother’s place when he was off on a vacation. The boy received no compensation for this service, nor did he earn any money elsewhere. The plaintiff supported him, paid the expenses of his education, and was. not relying upon him at that time as furnishing a source of income. ■ The plaintiff is. in prosperous circumstances, and was in no present need of support from his son. The foregoing is in substance the evidence from which the jury were called upon to measure the pecuniary loss sustained.

It may be conceded that the extent of damages which may be awarded in cases of this character rests very largely with the jury. But the finding and the evidence upon which it is based are subject to the same scrutiny in review by this court as upon any other question. Unless the finding be justified by the evidence, the court is called upon to set it aside, applying thereto the same rules which the court is authorized to apply in reviewing questions of fact. (Brown v. Foster, 1 App. Div. 578; O'Shea v. McLear, 15 Civ. Proc. Rep. 69.) Exercise of "the po wer is not go verned by any well-defined rule, but rests in the circumstances of the particular case. The measure of the plaintiff’s right of recovery is the pecuniary damage which he has sustained. In measuring this, however, the consideration is not limited to the benefit received prior to the death, but it should embrace all the probable or even possible benefits which might accrue from this life, modified by all the chances -of failure and misfortune.- Among these is, the probable or possible direct benefit from earnings during minority, and the legal duty of support of the parent owed by the infant in case of need after majority (Birkett v. Knickerbocker Ice Co., 110 N. Y. 504) ; also his advice during life and the prospect of inheriting from him after death. (Benson v. Corbin, 145 N. Y. 351.) There are-few cases in which special pecuniary damage' can. be .shown. Especially is this true of infants of tender years. But such fact does not: justify the court in holding that no damage is shown, or in directing that nominal damages only can be awarded, as the right to-recover is not only for present but also for prospective loss. (Ihl v. Forty-second Street R. R. Co., 47 N. Y. 317.) It is the evident contemplation of the statute that every person is of some relative-value to others. (Oldfield v. N. Y. & Harlem R. R. Co., 14 N. Y. 310.) Modern legislation in this regard, both constitutional and statutory, has emphasized the assumptions to be-drawn from the enactment. (Medinger v. Brooklyn Heights R. R. Co., 6 App. Div. 42.) While, as we havé observed, each case is to be largely governed by its particular circumstances, yet we may consider, as bearing upon the question of the amount which ought to have been awarded, the recoveries which verdicts have established and which the courts have upheld. (Johnson v. Long Island R. R. Co., 80 Hun, 306 ; affd. on appeal, 144 N. Y. 719.) The authorities cited in the opinion in the last case and they are but a tithe — show that in almost uniform course the award of- damages for negligently causing the death of an infant has been of a substantial sum. 'Indeed, we look in vain to find any logical relation between the verdicts which have^ been rendered in this class of' actions (and the reasons which the courts have assigned for their support) and this verdict which awards nominal damages. It is quite true that we are not. to apply strict-rules of logic in sustaining or setting aside the verdicts of juries.Were we to do' so, the whole administration of the law by this-means would be thrown into the greatest confusion, if it did riot entirely fail. Nevertheless, we may be reasonably sure, when we are confronted with a verdict which fails in logic when compared with others, and which upon a statement of it shocks the moral sense, that something about that verdict is so wrong that it ought not to be permitted to stand. This seems to be the status of this verdict. We think that the evidence in this case fairly shows that this life would have been of substantial pecuniary value to his father. Physically, he was splendidly equipped; mentally, he was strong and vigorous. The immediate time' had arrived when the cost and expense which his father had bestowed upon him and borne gave great promise of return. It was this fact which the jury were to consider, and to which much weight has been attached by the courts. Can it be possible that this prospect was worth, no more "than six cents ? In addition, the father had a reasonable right to expect that he would be able to rely upon the-advice which vigorous mentality is capable of giving, and that ioss, in this respect, is of a distinct pecuniary character. Measured by all the surroundings, we think that the jury failed fairly to comprehend the elements of damage which the case necessarily presented, and' that they erred in awarding nominal damages, for which reason this judgment should be set aside.

It was said, however, by the learned court below.that the evidence preponderated in favor of the defendant, and for that reason' it declined to interfere with the verdict. t If this view is to obtain, then it becomes the duty of the court to set the verdict aside. We are also urged by the defendant to sustain the verdict for the. reason that upon the evidence there can be no recovery, as the plaintiff failed to prove a cause of action. Such question is not fairly before us upon this appeal. '.The verdict of the jury in favor of the plaintiff has established his right to recover, and upon such question the defendant is concluded. The latter has not appealed from the judgment, and unless it appeals it presents no grievance for redress. It could only appeal when aggrieved. ' (Code Civ. Proc. § 1294.) It cannot be aggrieved by anything when it stands upon the judgment, and choosing to stand upon it, it admits necessarily that the plaintiff was entitled to recover something. Therefore, every question in this respect must be resolved in favor of the plaintiff. (Carples v. N. Y. & Harlem, R. R. Co., 16 App. Div. 158.) In this case the exceptions of the respondent were not properly before the court, as they were not contained in the record, but they were also not before the court because no appeal from the judgment presented them. There is no conflict between this case and that of Arnold v. Rothschild’s Sons Co. (23 App. Div. 221). In that case the verdict was for the defendant and the plaintiff appealed. The court simply held that the judgment was right, for the reason.that upon all.the proof the complaint should have been dismissed. In the present case both parties stand upon the judgment; the appellant to the extent that it finds a cause of action in his favor, and the respondent to the extent to which a recovery has been had. And the fact of a recovery, as we have seen, is. fatal to the respondent’s position, as it assumes'what it is precluded from questioning so long as it does not claim to be aggrieved by appealing, therefrom. Indeed, in the 6th point of the respondent’s brief is stated the correct rule : “ All the exceptions relate to the exclusion of evidence upon the question of defendant’s negligence. And as the verdict of the jury established its negligence, and the deceased’s freedom from negligence, no prejudicial error can be based, upon the exceptions.” Of course this is aimed at the 'plaintiff’s claim of erroneous rulings; but as it is fatal to the plaintiff so far as it finds application, so,also is it fatal to the defendant so far as it seeks to apply a rule which would overthrow the effect of the judgment.

This judgment should, therefore, be reversed, the plaintiff to pay the costs and disbursements of the former trial.

Yah Brunt, P. J., Rumsey, Patterson and Ingraham, JJ., concurred.

Judgment reversed, new trial ordered, the plaintiff to pay the costs and disbursements of the former trial.  