Nathan Levitt, an Infant, by Anna J. Levitt, his Guardian ad Litem, Respondent, v. Nassau Electric Railroad Company, Appellant

Nathan Levitt, an Infant, by Anna J. Levitt, his Guardian ad Litem, Respondent, v. Nassau Electric Railroad Company, Appellant. Negligence—measure of damages where an infant is likely to recover from his injuries. Where an action by an infant, based upon a charge of negligence, was tried about four months after the accident occurred, and it appeared that the infant, although he had suffered considerable pain, was earning half wages at the time of the trial and would probably recover in three or four years, it was considered that a verdict in his favor for §4,300 should be reduced to §3,510.97. O’Brien, J., dissented. Appeal Dy the defendant, the Nassau Electric Railroad 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' 19th day of October, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of October, 1896, denying the defendant’s motion for a new trial made upon the minutes. James O. Church, for the appellant. William Crossman, for the respondent. [MAJORITY — Van Brunt, P. J.:] Van Brunt, P. J.: This action was brought to recover -damages alleged to have been, ¡sustained by the infant plaintiff, resulting from the negligent management by the defendant of its railroad upon which he was a passenger. Upon the trial of the case the defendant admitted the negligence which resulted in the injuries to the plaintiff, and such trial thereupon became simply an assessment of damages. Proof was taken tending to show the • injuries which the' plaintiff had sustained, and the jury rendered a verdict in his favor for the sum of $4,300. A motion having been made for a new trial which ivas denied, from the judgment and order thereupon entered this appeal is taken. It seems to us, upon an examination of the evidence, that the damages were excessive. It is true that the infant plaintiff was injured and endured considerable pain, and suffering and was prevented from pursuing his ordinary avocations. The accident in question happened in June, 1896, and in October, 1896, the case was tried. At the time of the trial -the plaintiff had not entirely recovered, but was suffering inconvenience in his urinary organs. There was no evidence, however, that the injury in question would be permanent. ITe was then earning about half the wages which he had earned before, and it appeared that the probabilities, were that in three or four years he would entirely recover. Under these circumstances the verdict of the jury seems to have been considerably more than compensatory, and we think a new trial should be granted, unless' the plaintiff stipulates to reduce the verdict to. $3,300. The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event, unless the plaintiff stipulates to reduce the judgment to $3,510.97, in which event judgment as so reduced affirmed, without costs to either party. Williams, Patterson and Ingraham, JJ., concurred; O’Brien, J., dissented. [DISSENT — O’Brien, J. (dissenting):] O’Brien, J. (dissenting): The amount of damages was a question peculiarly within the province of the jury, and even though we might, upon the same facts, had the question been presented to us, have given a little less, I do not think we should usurp the functions of the jury in a case where there is nothing to show that they were actuated by-bias, prejudice or passion. I, therefore, dissent. Judgment and order reversed and new trial granted, with costs to appellant to abide the event, unless the plaintiff stipulates to reduce the judgment to $3,510.97, in which event, judgment as so reduced affirmed, without costs to either party.