Opinion
November 8, 1907.
Bayard H. Ames, for the appellant.
M.L. Malevinsky, for the respondent.
We think that upon the evidence the case was properly submitted to the jury, both as to the defendant's negligence and the deceased's freedom from contributory negligence, and that no error was committed which would justify a reversal of the judgment. While upon the record we would have been better satisfied if the verdict had been for the defendant and would not have interfered if the learned trial justice had set aside the verdict as against the weight of evidence, we do not think that the evidence preponderates so strongly in favor of the defendant as to justify us in granting a new trial upon that ground. We think, however, that the verdict is excessive. The recovery under section 1904 of the Code of Civil Procedure was limited to 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, viz., the next of kin of the decedent. The decedent was unmarried, leaving a mother, a resident of Ireland, his next of kin, and it was only the damage sustained by the mother of the decedent caused by his death for which the defendant was liable. The evidence of what the decedent had paid towards the support of his mother was quite indefinite, and the jury evidently were under the impression that they could award compensation to the decedent's sisters.
Our conclusion is that the recovery should not exceed $2,500, and the judgment and order will, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event, unless the plaintiff stipulates to reduce the recovery to that amount, in which case the judgment as so modified and the order appealed from will be affirmed, without costs.
PATTERSON, P.J., CLARKE, SCOTT and LAMBERT, JJ., concurred.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event, unless plaintiff stipulates to reduce judgment as stated in opinion, in which event judgment as so modified and order affirmed, without costs. Settle order on notice.