Heinz v. Brooklyn Heights Railroad — 36 N.Y.S. 675

Majority

p. 675

HEINZ v. BROOKLYN HEIGHTS R. CO.

(Supreme Court, General Term, Second Department.

December 2, 1895.)

Headnote

Death by Wrongful Act—Damages—Province of Jury.

Whether 83,500 is an excessive amount to allow for the death of a bright and healthy boy, seven years old, is a question for the jury.

Appeal from circuit court, Kings county.

Action by Gustav Heinz, as administrator of Louis 0. Heinz, deceased, against the Brooklyn Heights Railroad Company, to recover damages for the death of plaintiff’s intestate. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Affirmed.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

Morris & Whitehouse, for appellant.

M. L. Towns, for respondent.

Several witnesses testify that the car was going 14 or 15 miles an hour. There were also two persons, besides the motorman, standing upon the front platform. There was enough evidence to go to the jury upon the question of defendant’s negligence. The deceased boy was seven years of age, and the question whether he exercised such care as can be reasonably required from a lad of that age was peculiarly a question for the jury. The motion for nonsuit was properly denied. The charge of the court could not be objected to by defendant. The only question that remains is whether a verdict of $3,500, for the life of a bright and healthy boy, is excessive. That is peculiarly a question for the jury. We cannot say the verdict shows passion or prejudice.

Judgment affirmed, with costs. All concur.