#### KLEMM v. NEW YORK CENT. & H. R. R. CO.

(Supreme Court, General Term, Second Department.

May 14, 1894.)

1. Pleading—Amendment of Complaint.

In an action by an administrator for negligence causing the death of his intestate, an amendment of the complaint by inserting an allegation that decedent’s “husband and son sustained pecuniary damages by reason of her death in the sum of $5,000,” does not introduce a new cause of action, or change the old one, and is therefore properly allowed.

2. Death by Wrongful Act—Excessive Damages.

A verdict for $5,000 is excessive where the persons for whose benefit the action was brought are decedent’s husband and son, and it appears that decedent was about 54 years old and her husband was 65 years old. that the son was a physician about 35 years old and lived away from his father’s house.

Appeal from circuit court, Orange county.

*862Action by Anthony Elemm, as administrator of Eliza Klemm, deceased, against the ¡New York Central & Hudson River Railroad Company, to recover damages for negligence causing the death of plaintiff’s intestate. From a judgment for $5,447.81 damages and costs, entered on a verdict in favor of plaintiff, defendant appeals. Reversed.

Argued before DYKMAN and PRATT, JJ.

Ashbel Green (A. S. Cassedy, of counsel), for appellant.

William D. Dickey, for respondent.

DYKMAN, J.

But two questions are to the court by this appeal. The first relates to the amendment of the complaint during the trial, and the other to the amount of damages.

Upon the trial the complaint was amended, by the. permission of the court, by the insertion of these words: “And that her husband and son sustained pecuniary damages, by reason of her death, in the sum of $5,000.” The amendment neither introduced any new cause of action, nor changed the old one. It was therefore such a one as might be made upon the trial; and, although the counsel for the defendant expressed surprise, yet no delay was requested, and we find no error in the allowance of the amendment.

The verdict was for $5,000, in favor of the plaintiff; and upon its rendition the counsel for the defendant moved to set it aside, as excessive. That motion was denied, and there was an exception, and that presents a very serious and embarrassing question. There is no standard, and no measure, for the verdict, in this class of cases. There is a limitation of its size, but the only guide for the jury in making it, in case of death, is the provision of the statute which authorizes the action, that the damages to be recovered shall be “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” Code Civ. Proc. § 1904. What is a just and fair compensation for the pecuniary injury in a given case can be determined by no rule, because each case presents a different state of facts, either in the character, capacity, and condition of the deceased, or in the age, sex, circumstances, and condition of the next of kin, and all those elements are to be considered as a basis for the allowance of damages. Lockwood v. Railroad Co., 98 N. Y. 526. Appellate courts usually hesitate about interfering with verdicts of juries, and failure to interfere is doubtless many times the product of such hesitation. In this class of cases, as we have already seen, the elements furnished to the jurors enable them to do no more than make an estimate of the damages; and such estimates are problematical, at best. It was the design of the legislature, in the enactment of this law, to furnish a remedy unknown to the common or civil law. The theory of the statute is that the next of kin have a pecuniary interest in the life of the person killed, and the value of that interest is the amount of the pecuniary injury for which the statute provides compensation. It treats human life in a pecuniary aspect, and permits compensation for the same at its *863pecuniary value. It presupposes a pecuniary loss in the deprivation of a valuable life. It accomplishes its most useful purpose when it is utilized for the recovery of damages resulting from the death of a man who has a wife and children dependent upon him for their support. Indeed, when the statute was made, in 1847, and even when first amended, in 1849 (Laws 1847, p. 575; Laws 1849, p. 388), the recovery was for the benefit of the widow and next of kin; and the husband was not named as one of the beneficiaries until the law was amended in 1870 (Laws 1870, p. 215), thus showing that the widow and children were the first objects of the solicitude and care of the legislature. They were generally left in a helpless condition, and their loss of a husband and father, upon whom they were dependent, would be greater to them than the loss of a mother and wife to a son and husband able to care for themselves. Protection against excessive or insufficient damages can only be afforded by the courts. They are a portion of the machinery employed in the administration of the statute, and they cannot abdicate their functions. In this case the husband has been a soldier in the army of the United States, but is now out of the service, and is in Germany. He is about 65 years of age, and his deceased wife was about 54. They had but one son. He is a physician, about 35 years if age, and living away from his father’s house. The deceased was a vigorous, healthy woman, a good worker, and did her own housework. Such are the elements furnished for the estimate of the pecuniary injury resulting from the death of the deceased, and it is evident at once that there is nothing to show that the son has sustained any pecuniary injury by the death of his mother. It does not appear that he received any pecuniary aid from her, and no inference of that kind can be drawn from the testimony in the case. The pecuniary injury of the husband consists in the loss of a wife, who was his housekeeper; and the elements of this damage are the loss of his wife’s services, the expenses incident to and resulting from the injury, and the loss of her society. Cregin v. Railroad Co., 83 N. Y. 599. In view of all the circumstances, we think the verdict is excessive, and that the facts will not justify a verdict beyond $2,500. The judgment should therefore be reversed, and a new trial granted, with costs to abide the event, unless the plaintiff stipulates to reduce the verdict to $2,500, in which event the judgment will be affirmed for that amount, without costs.