
    William E. Stillings, as Executor, etc., of Isaac I. Stillings, Deceased, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Negligence—a person intending to take a north-bound street aw killed by a southbound street aw while crossing the south-bound track — when the question as to■ contributory negligence should be submitted to the jury — verdict of §10,000 reduced.
    
    In an action brought to recover damages resulting from the death of the plaintiff’s testator, it appeared that about midnight on January 7, 1899, the decedent and a companion stood at the southwest corner of Central -Park West and Sixty-ninth street in the city of New York, intending to take a north-bound car on the defendant’s street railway which ran through Central Park West;, that a north-bound car was seen at about Sixty-eighth street and that a southbound car was seen at the southerly side of Seventy-first street; that the-decedent and, his companion left the southwest corner of Sixty-ninth street, and signaled to those in charge of the north-bound car to stop; that it did stop, between the north and south lines of Sixty-ninth street; that they walked quite fast in a northeasterly direction toward the north-bound car; that the decedent’s companion, who was about four feet in advance of the decedent, reached the north-bound car in safety; that he turned and saw the decedent right behind. ‘ him in the center of the south-bound track with the south-bound car rapidly approaching him; that he called to the decedent to look out for the car and that the decedent attempted to avoid the car by a backward movement, but. that he was struck before he could leave the track and was killed.
    The evidence tended to show that the south-bound car was traveling at the rate- ■ of twenty or twenty-five miles an hour and that no warning was given of its, approach.
    
      Held, that the question whether the decedent was guilty of contributory negligence was properly submitted to the jury.
    McLaughlin and Ingraham, JJ., dissented.
    
      In an action to recover damages for the negligent killing of a successful' business man, seventy-three years of age, who left a widow and adult children, none of whom, except the widow, received any pecuniary aid. from him, a.verdict,of $10,000 is excessive and should he reduced, where the evidence does not establish the decedent’s income or the. amount which he contributed to his family or which his family might reasonably expect from him in the future.
    Appeal by the defendant, the Metropolitan Street 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 New York on the 20th day of November, 1902, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s, office on the 14th day of November, 1902, denying the defendant’s motion for a new trial made upon the minutes, and- also from an order entered in said clerk’s office on the 26th' day of November, •1902, granting the plaintiff’s motion for an additional allowance.
    
      Gha/rles F. Brown', for the appellant.
    
      Archibald G. Shenstone, for the respondent.
   Patterson, J. :

At about midnight on January Y, 1899, the plaintiff’s testator was killed by being struck and run over by a car belonging to the defendant and in charge of its servants. The car was proceeding southerly on the westerly track of the defendant’s road on Central , Park West. - The decedent and a companion were at the southwest corner of Central Park West and Sixty-ninth street, intending to. take a north-bound car on the defendant’s road. Such a car was seen at about Sixty-eighth street, and a south-bound car was also seen at about the southerly side of Seventy-first street. The decedent and his companion left the southwest corner of Sixty-ninth street, signaling to those in charge of -the north-bound car to Stop. The car did stop between the north and south lines of Sixty-ninth street. The plaintiff and bis companion walked quite fast toward the north-bound car, diagonally northeastward from the street corner from which they started. The conductor cried to them to come on and to hurry up. The decedent’s companion reached the northbound car in safety and was about four feet in advance. He turned and saw the decedent right behind him in the center of the south track, with the south-bound car rapidly approaching. He called to the decedent to look out for the car, and he testified that the decedent attempted to avoid it by a backward movement, but was struck before he could leave the track and was killed.

There was evidence on the part of the plaintiff-to show that the south-bound car was proceeding at a very rapid rate of speed, as much as about the rate of twenty or twenty-five miles an hour; also that no gong was sounded and no warning given. There is evidence from which the jury could well infer that the car was being l-un at such a rate of speed as not to be under control at street crossings or the places at which pedestrians are expected to cross the street. The theory of the defendant is that the car was proceeding only at the rate of some eight miles an hour or less; that by reasonable vigilance or prudence the decedent could have seen the impending danger from the approaching car and could have avoided it. However, under the evidence as it stands, the question of contributory negligence was one for the jury. They might well believe from the evidence that the decedent and his companion might reasonably have expected to, reach the northbound car in safety, and that the motorman of the south-bound car. would have his car under control so that they might cross without danger. Upon the whole evidence we see no reason for charging the decedent with contributory negligence as matter of law.

We have examined the exceptions in the case, but we do not think they are of sufficient importance to require a reversal of the judgment.

The jury rendered a verdict for the plaintiff in the sum of $10,000. We can find no basis in the evidence authorizing a judgment in so large a sum. The decedent was seventy-three years of age. He was a successful business man, apparently in good financial circumstances. He left a widow and adult children. No information is given us as to his income or as to what contribution he made to his family, or what they might reasonably expect from him in the future. There is a singular lack of data in this case upon which to -base pecuniary loss to the next of 'kin. None of the next of kin of the decedent was receiving pecuniary aid from him, but only the wife. The damages are excessive and should be reduced to $5,000.

If the plaintiff will stipulate so to reduce the judgment as entered to the sum-of $6,586.43, the judgment as modified by such reduction and the order appealed from will be affirmed, without costs. If, however, the stipulation is not’given, the judgment and order must be reversed and a new trial ordered, with costs to appellant to abide the event.

Hatch and Laughlin, JJ., concurred.

McLaughlin, J. (dissenting):

Ingraham, J., concurred.

On plaintiff stipulating to reduce the judgment as entered to the sum of $6,586.73, judgment as so modified and order affirmed, without costs. If such stipulation be not given, judgment and order reversed and new trial ordered, with costs to appellant to abide event.  