The plaintiff in this action, an infant, was injured in an accident on the line of the street surface railroad operated by the defendant on Metropolitan avenue in Middle Village, Queens county, on. the 15th of October, 1892. It was established on the trial, and it is not ques*268tioned on this appeal, that the child was in jured through-the negligence of the defendant, making it necessary to amputate one of the legs above the knee. The only point argued in this court, is that the verdict of the jury, on which a judgment for- $15,941.25 was entered in behalf of the plaintiff, is excessive. •
The learned trial court, in denying a motion for a new trial, • writes an opinion in which it enters into a calculation tending to show that the judgment is excessive, and says: “I had an opinion, growing out of my own view and discretion, in' respect of whether the verdict be excessive. But that is not what must control me. Counsel have furnished me with a list of the cases in which such verdicts have and have not been reduced. Verdicts as large and larger for like injury have been upheld, as a rule, though it is true some have been reduced. Exercising my discretion-in the light of precedent, and constrained thereby, I must deny the motion to reduce. Trial judges were never so reluctant to exercise any discretion whatever' as they are at present, for reasons that are growing obvious to the bar. They do not have things presented to them under the disguise of print, and with academic afterthoughts and refinements, but in their every day reality, just as they are generally seen and understood. Discretion exercised under these different conditions cannot in the nature of things- be the same.”
Whatever the weight of precedent which has constrained the learned court to forego the exercise-of a sound discretion in the discharge of its official duties, there. is an abundance of .authority for the. exercise of such discretion. Within the year Presiding Justice Goodrich, of this court, writing the opinion in the case of Branagan v. Long Island R. R. Co. (28 App. Div. 461), said: “ The final sentence may be open to the construction that the learned justice stated that the weight of precedent was against the right of. -the trial court to set aside or to reduce a verdict at the Trial Term, and it is only for this reason that we take occasion to say that the residence of such a power in the court at Trial Term is inherent and beyond question, and needs no citation of authority. We have had frequent occasion, during the existence of the present Appellate Division of the Supreme Court, to exercise the power of reducing verdicts which we considered excessive, but this power can never be used more satisfactorily than at the Trial Term, where the *269court has the opportunity, not only of seeing and hearing the parties and witnesses, but of judging of their behavior on the stand. * * * It is to be regretted that this power has not more frequently been resorted to in cases'where it is so clear that such manifest injustice has been done that the Appellate Division has been constrained to review and reduce the .amount of verdicts which have apparently been rendered under the influence of passion, prejudice, partiality, sympathy or misconception.”
While, therefore, there is undoubted authority for the exercise of discretion on the part of the trial court, this is a power not to be used arbitrarily or- without careful consideration of the facts as established by the evidence. In the opinion handed down by the learned trial court, we are told that the “ plaintiff, a boy eighteen months old at the time of the injury, lost his leg below the knee.” The pleadings and the evidence clearly establish that in the case-at bar the plaintiff lost his leg above the knee, and, in the absence of the exercise of that discretion inherent in the court at Trial Term, we are unable to determine whether the learned court would, in view of the facts, deem itself justified in reducing the verdict found by the jury. In the absence of such light upon the question, and in view of the fact that the law contemplates that the person injured shall be compensated for the loss and the pain and suffering which he has been called upon to endure through the negligence of another, we are not prepared to say that the verdict in this case is excessive.
The judgment should be affirmed.
All concurred, except Goodrich, P. J., who read for reversal.