Effie M. Ainsworth, as Administratrix, etc., of William I. Ainsworth, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant

Third Department, March, 1914. Effie M. Ainsworth, as Administratrix, etc., of William I. Ainsworth, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant. Negligence— death— damages. Appeal from a judgment of the Supreme Court, entered in the Albany county clerk’s office on the 10th day of October, 1913, upon the verdict of a jury for $16,500, and also from an order entered on the 22d day of October, 1913. Judgment and order reversed and new trial granted, with .costs to appellant to abide event, unless the plaintiff stipulates to reduce the verdict to $12,000, and if she so stipulates the judgment is modified and as so modified judgment and order affirmed, without costs. All concurred, except Woodward, J., who voted for affirmance in opinion, in which Howard, J., concurred. [DISSENT — Woodward, J.] Woodward, J. (dissenting): I vote to affirm this judgment, and expressly dissent from that part of the decision which provides for a reduction of the amount of the recovery. In my judgment this is not a case calling for any such action by this court. The plaintiff’s intestate was a man of forty-two years of age, intelligent, fairly well educated, sober and industrious, a respected member of society. He was actually earning at the time of his death $1,200 per annum, and had all the chances of a good American citizen to increase this amount indefinitely. He left a widow and two young children, the latter of the ages of twelve and seven years respectively. The breadwinner of this family is dead by the negligent act of the defendant. The actual financial loss possibly largely exceeds the recovery, and the loss to these children of the companionship, advice, counsel and guidance of a good father is difficult to overestimate. A jury of twelve men has fixed what I regal'd as a reasonable sum. The litigation has been protracted and expensive, and I do not think the alternative should be forced upon the plaintiff of accepting a reduction or the burden of a new trial. Howard, J., concurred.