By the Court,
E. Darwin Smith, J.The nonsuit was granted in this action upon one or more of three grounds, but upon which one, the case does not state. I shall therefore consider .them in the order which they occur. The. first ground is that the “plaintiff’s intestate was guilty of negligence."
I do not think that she was so clearly guilty of negligence as to warrant the taking of the case from the jury on- this ground. She was ordered, as several witnesses testify, by *537one of the officers or persons in-charge of the train, who spoke in a very authoritative manner, to leave the car in which she was standing, and proceed to the forward car. Ho seat had heen furnished her in the car where she then was, and it could hardly be expected that she should remain standing during the journey. Being a woman, and traveling with a very old man as an escort, she would naturally obey the commands of a person belonging to the road, and could hardly he called negligent in so doing.
There was evidence I think sufficient to take the case to the jury, upon the question whether the death of the intestate was caused by the defendants’ negligence. The defendant was clearly responsible for the acts of the person in charge of the train, by whose direction the intestate attempted to pass from one car to another. The nonsuit I presume was granted upon the remaining ground, that the plaintiff failed to show pecuniary damages to the next of kin. There is some proof on this point, showing that the services of the decedent might have been of some value; certainly as much as there was in the case of Oldfield v. New York and Harlem R. R. Co., (14 N. Y. Rep. 310,) where the deceased was a child of six or seven years of age, whose services could have been of hut small pecuniary value to her parents. But the court of appeals have decided this question in the above cited case, where Judge Wright, (p. 314,) amongst other things, says that “ nominal damages, at least, were recoverable;” and Judge Comstock in the same case, at (p. 230,) .says, “that without any special proof of pecuniary loss, nominal damages at least could be recovered.” In the the case of Quin, adm’r, v. Moore, (15 N. Y. Rep.) Judge Comstock, in a case arising under the same statute, says, (p. 434:) “It maybe added that, as the statute expressly gives the right of action, nominal damages, at least, could be recovered.” It is quite clear that if a right of action was established at the time, nominal damages at least should have *538been given. So far, therefore, as this question is concerned, the nonsuit was erroneously granted.
But it is argued that this court will not grant á new trial when the plaintiff is only entitled to recover nominal damages. (Hopkins v. Grinnell, 28 Barb. 536. John. Cas. 267. 2 Cowen, 479.) The cases in which this rule has been so stated put the refusal to grant a new trial upon the express ground that the plaintiff could in no event recover any thing but nominal damages. Some cases assert that this rule can not be applied when the question is presented upon exceptions, or upon error in a superior court of review. In Herrick v. Stover, (5 Wend. 584,) Judge Marcy said, he had always supposed that the party who had been affected by an error, be the extent of the injury ever so small, “ can require of us, ex debito justitice to correct it.” The question is presented in this case upon exceptions. The plaintiff’s counsel asked to go to the jury, and the judge refused to submit the case to the jury, and the plaintiff’s counsel duly excepted.
I think the rule was correctly stated in the opinion of my brother Welles, in Hopkins v. Grinnell, when he asserts the rule to be, that where it is apparent from the whole case that the plaintiff can in no event recover any thing but nominal damages, a new trial should not be granted. But in this case the jury would not, I think, have been limited to mere nominal damages. If they had given damages for an amount sufficient to entitle the plaintiff to recover full costs or a larger amount, within reasonable limits, the court, I think, would not have set aside the verdict. The., deceased was a woman from forty-five to fifty years of age. She had three grown up children, and her life obviously could not have been in a pecuniary sense very valuable to her chileren, all of whom were settled in life and capable of supporting themselves. She probably could have done little more for the residue of her life than support herself by her personal efforts and industry; but this was a question for the jury.
She was killed near Syracuse in this state,.and her home *539was with her daughter in Springfield, Pennsylvania. If the jury had found a verdict, as I think they might have done, for an amount that would have indemnified her children for the expenses attending the preserving and removal of her remains to her former home, and her burial and incidental expenses, I think we could not have set it aside. At least I do not think we can say, as matter of law, that a jury may not give over six cents damages in the case, which is what is meant by nominal damages. I can not see, in such case, upon what principle any considerable amount of damages could he given ; hut it is perhaps hardly in order to discuss that question now, if we hold, as I think we must, that the jury is not limited in such a case to mere nominal damages. I think there should he anew trial; all costs to abide the event.
[Monroe General Term, March 7, 1865.New trial granted.
Welles, James C. Smith and E. Darwin Smith, Justices.]