Connor v. Mayor of New York

Ingraham, J.: The action was brought to recover the damages sustained by the next of kin of Timothy Connor, deceased, in consequence of- his death. The case came on for trial before a jury, and the plaintiff - gave evidence tending to show that the defendant, a workman driving a cart through Gouverneur street, was thrown off his cart by reason of a hole in the crosswalk of the street two feet square and between five and six inches deep. The left wheel of the cart ran into this hole. There was evidence, tending to show that this condition of -the street had existed for four or five months. Connor left him surviving a widow and four children, the oldest eleven and the youngest six years of age. The ease was submitted to the jury, who found a •verdict for the plaintiff for $1,000. The learned trial judge set [187] aside the verdict upon the ground that it was inadequate, and from that order the defendant appeals. The deceased was a laboring man earning two dollars per day, charged with the support of his wife and children, and his death made it impossible for him to perform this duty. He was in good health prior to the accident, and we agree with the court below that if the defendant was liable at all, the damages sustained by the widow and these four children, who will need many years of support before they will be competent to take care of themselves, exceeded the sum awarded by the jury. . W e are never disposed to interfere with the discretion of the trial court in granting a new trial, unless it appears that that decision is based upon an erroneous determination of a legal question or principle, or upon some misunderstanding of the effect of the evidence. Here it is quite clear that the death of the husband and father of a family of this character, thé person upon whom rests the burden of supporting the family, will not by any means be compensated by the amount of this verdict. Assuming that the widow and children had other means of support, the duty nevertheless was upon -the husband and father to support the family. . We think, therefore, that under the circumstances the trial judge did not commit legal error in his determination that the amount awarded by the jury was inadequate; and the order appealed from is affirmed, with costs. Rumsey and Patterson, JJ., concurred; Van Brunt, P. J., and McLaughlin, J., dissented.