(dissenting). The action was brought to recover damages for the death of the plaintiff's intestate, alleged to have been caused by the negligence of the defendant. On the 6th day of October, 1894, the intestate, while crossing the tracks of the defendant’s road, at Eighty-Seventh street and Third avenue, was struck-by one of the defendant’s cars, and was thrown down and received the injuries from which his death is alleged to have resulted. He *798•died June 2, 1895, about eight months after the accident. The questions as to the nature of the accident, the negligence of the defendant, and the absence of contributory negligence on the part of the intestate were litigated upon the trial, and were determined by the jury, upon conflicting evidence; and upon this appeal no question is made as to the correctness of such determination. It is claimed here that the jury were not justified in finding from the evidence that the injuries received by the intestate in the accident caused his death, and that there were errors committed by the court in the reception and rejection of evidence, and in the charge as to this branch of the case, and in respect to the damages claimed and recovered. There could be no recovery in the case of any damages, unless it was established and found by the jury that the injuries received in the accident caused the death. Code Civ. Proc. § 1902. The plaintiff had ■the burden of proof upon this issue. The court charged these propositions clearly, upon the request of the defendant. The first question here is, whether there was evidence sufficient to support the finding of the jury that the injuries received did cause death. At the time of the accident, 7 o’clock in the evening, the intestate, having been struck by the car and thrown down, was picked up and taken into his store near by, and was shortly afterwards taken in an ambulance to the hospital, and soon after was brought back home In a carriage. Two hospital physicians examined him after the ■accident, during the time he was at the hospital, and testified that they discovered only slight injuries to the knee and ear. Drs. Miller, Hoffman, and McHale saw, examined, and attended the intestate at various times between the accident and the death, and gave evidence as to his injuries, his condition, his disease, and his death. The plaintiff claimed that the intestate was seriously injured in his knee, that this injury resulted in tuberculosis in the knee, and that this condition spread through the system and extended to the lungs, causing consumption, of which the intestate died. This claim was based upon the evidence of the three physicians last named as to the injuries of the intestate, the diseased condition resulting therefrom, and as to their opinion as experts as to the death having resulted from the injuries. There was a physician sworn in behalf of the ■defendant, Dr. Fowler, who gave evidence of an expert nature to combat that given by the physicians sworn for the plaintiff. There was an extended cross-examination of these witnesses, and the defendant claimed the consumptive condition of the intestate which caused his death existed prior to the accident, and was in no way traceable to the injuries received in the accident. We need not refer to ■all the medical evidence in detail. The court submitted to the jury the question as to the cause of death. We conclude that the evidence was sufficient to sustain the finding that the death was caused by the injury to the knee received in the accident. It is not the province of the court on appeal to consider and weigh the evidence, with a view to determining the preponderance in one way or the other. That is the province of the jury. We cannot say that the ■evidence here was so weak and inconclusive as to call for interference with the conclusion arrived at by the jury. We find no ex*799ceptions to the admission or rejection of evidence calling for a reversal of the judgment.. While many such exceptions appear in the record, the appellant calls attention to but few, and we think those were not well taken.
The court charged most of the requests submitted in the behalf of the defendant, but refused to charge that the recovery could not ■exceed $5,000, to which refusal an exception was taken. The verdict was in fact $6,500. This refusal to charge was erroneous and resulted in a verdict which the jury was not authorized to render. The accident occurred prior to the time the constitutional amendment went into effect, January 1, 1895. The death occurred after the amendment had gone into effect. As the law stood prior to January 1, 1895, a recovery in this kind of an action could not ex ■reed $5,000. The amendment provided:
“The right of action now existing to recover damages for injuries resulting in ■death shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation.” Article 1, § 18.
It has been held that this provision of the constitution has no retroactive effect. O’Reilly v. Stage Co., 87 Hun, 406, 34 N. Y. Supp. 358; Isola v. Weber, 147 N. Y. 329, 41 N. E. 704. In these vases the injuries and deaths were all prior to January 1,1895, when the amendment went into effect, but the reasons given for the decisions in those cases are equally applicable here. It was said in the O’Reilly Case, and the reasoning was adopted in the Isola-Weber Case, that:
“The effect of the constitutional provision * * * is twofold,—it imposes a greater liability on persons wrongfully or unlawfully causing the death of others, and confers additional benefits on persons in whose favor a right of action is given for such wrongs; and such provisions, whether constitutional or statutory, are seldom construed to have a retroactive effect * *. A law is never 1o have a retroactive effect unless its express letter or clearly manifested intention requires that it should have such effect. If all its language can be satisfied by giving it prospective operation, it should have such operation only. * * * There is no express provision in the constitution that the section quoted shall affect rights or liabilities arising out of past transactions, nor is there a hint that the section was intended to have a retroactive effect.”
The right of action here grew out of the negligent acts of the defendant, which took place prior to the time this provision of the constitution went into effect. The results of those acts alone occurred after the time the provision took effect. The defendant was not, after this provision took effect, guilty of any negligent acts upon which this right of action was based; and therefore to make the constitutional provision in question applicable to this case would be to give a retroactive effect to the provision of the constitution. The reason of this rule is, manifestly, .that one is entitled to know the legal consequences of his negligent acts when they are committed, that he may be able to understand the results to him of such acts, rather than have forced upon him, after the acts are committed, results or penalties greater than those which existed at the time of their commission. It would give a retroactive effect to the provision to make it import a greater liability upon this defendant for negligently causing the death of plaintiff’s intestate than existed *800when the defendant committed the negligent acts which caused the death. It was clearly erroneous to permit the jury to render a larger verdict in this case than $5,000.
In the course of the charge the learned trial judge used the following language:
“The defendant’s claim is that the deceased did die of consumption, but that it was due to conditions which existed at the time of the accident, and which were not influenced by the injury to the lmee; that if these contusions did produce the condition of the knee testified to by the physicians as being tuberculosis, but that condition had nothing to do with the subsequent development of consumption.”
The defendant excepted to the latter part of this language, commencing with the words, “that these contusions,” but did not except to the first part of the language here quoted. It is claimed that the court, in the use of this language, incorrectly stated the defendant’s position, and in effect told the jury that the defendant conceded that the injuries received by the intestate at the time of the accident produced the condition of the knee which the physicians said was-tuberculosis, whereas the defendant claimed all along that there was-no tuberculosis of the knee, and that no such condition was produced hy the injuries received at the time of the accident. Taking the whole language quoted together, that which was not excepted to as well as that which was, we fail to see how the jury could have been misled, to the prejudice of the defendant, by this part of the charge. The court did not intend to convey the idea that the defendant conceded that there was tuberculosis of the knee, which was produced ‘ by the injuries, but that the tuberculosis of the knee, if it existed at all, was not the result of the injuries, but of conditions of the system existing at and before the time the injuries were received. By inserting the word “if” before the words “these contusions,” and changing the word “but” to “yet” a little further on, the language would have been literally correct and unobjectionable, and would then have been as follows:
“The defendant’s claim is that the deceased did die of consumption, but that it was due tó conditions which existed at the time of the accident, and which were not influenced by the injury to the knee; that if these contusions did produce the condition of the knee testified to by the physicians as being tuberculosis, yet the condition had nothing to do with the subsequent development of consumption.”
This was a fair statement of the defendant’s position, and what the language of the charge quoted fairly imported, and what under the circumstances the jury must have understood the learned judge to say. An examination of the record as to what took place upon the trial shows that the defendant’s position was clearly taken, and must have been well understood by the court and the jury, and this language in the charge could not well have misled any one, even if it was, by a technical and literal construction, not just right. At the close of the charge the defendant, among other numerous exceptions taken, took this exception. There was no specific objection made to> the language that it incorrectly stated the defendant’s position. The. attention of the learned judge was not called -to the technical incorrectness of the language of the charge. If it had been, we cannot *801doubt but a correction would have been made in the form of the language used so as to make it just right, inasmuch as it was merely a statement of defendant’s theory of the case, which the learned judge must have understood perfectly, and could have had no interest or desire to misrepresent. It is also said that the words “subsequent development of consumption” necessarily suggested that the defendant claimed and conceded that the consumption came upon the intestate after the injuries to the knee were received, whereas the defendant clearly insisted the disease existed before the injuries were received. We think this contention is hardly correct. It grows -out of a misconstruction of the word “development.” This word does not mean caused, induced, or created, but it implies a pre-existing condition, which was only subsequently made apparent, visible, and known. That the learned judge meant to so use the term is clear from the language first used in the quotation:
“The defendant’s claim is that the deceased did die of consumption, but that it was due to conditions which existed at the time of the accident, and which were not influenced by the injury to the knee.”
It is also said that there was error in the charge as to damages, the jury having been instructed that upon this subject they should consider the earning capacity of the deceased, the business in which he was engaged, and what he was able to earn; what the receipts of the widow and the profits of .the business were. That these were proper subjects for the consideration of the jury, when there was evidence with reference thereto, is not disputed, but it is said that there was no such evidence in the case. It did appear in the evidence that the deceased was engaged in the coal business, and the widow testified as to what moneys she received from him. The only question made here relates to his earning capacity, and, as indicative thereof, the profits made by him in the business. The defendant requested the court to charge that “there is no evidence of the profits of the business of the deceased.” And the court so charged, “with the modification that the plaintiff’s widow testified that her husband gave her $20 to $25 a week.” And then in the body of the charge the learned judge said:
“You are to consider his earning capacity, the business in which he was engaged, and what he was able to earn * * <=. In assessing the damages, the jury, of course, must proceed upon the facts in the "case and reason upon those facts. The testimony of the widow is that her husband gave her from $20 to $25 a week. The claim of the defendant is that that does not show that that was the profit of his business; that it shows nothing beyond that he received that amount from his business, but what the profits were the evidence does not disclose. It is for the jury to determine from that evidence what his profits were from the business. Of course, the jury must take into consideration the probabilities of business. It would not, of course, be correct to assume that the business would always be prosperous, or that the return from the business would always be certain.”
It will be remembered that this evidence was not given for the purpose of enabling the jury, as an element of damage, to include in their verdict any amount as the profits of the deceased’s business, but merely as bearing upon the value of the deceased’s life,, and the compensation, for pecuniary injuries resulting-from his death, to the widow and next of ldn. It was not necessary that there should be *802evidence showing just what the profits of the business were, nor precisely what deceased’s earning capacity was. The plaintiff was to give such evidence as she could with reference to the deceased, and the jury were not to figure precisely the amount of damages the widow and next of kin had suffered by reason of the death, but they were to estimate as well as they were able the damages, which were at the best uncertain and contingent, and could not be proved even with an approach to accuracy. With this understanding of the evidence, and the use to be made of it, we cannot say that the particular language of the charge was improper or misleading. It was, in effect, saying that there was no proof as to the amount of profits made by the deceased in his business, except that the widow testified what he paid over to her from the business per week. Such inferences as the jury could draw from this evidence they might, not to determine the actual profits of the business, but as bearing upon the value of the deceased’s life. We do not think this was error for which the judgment should be reversed. We have examined such questions in the case as seem to us to call for consideration, and have arrived at the conclusion that the only error calling upon this court to interfere with the result of the trial is that as to the refusal to limit the verdict of the jury to the sum of $5,000. The court as to this error will follow the rule adopted in the O’Keilly Case, above cited, and reverse the judgment and grant a new trial, with costs to the appellant to abide event, unless the plaintiff stipulate to reduce the verdict and judgment to $5,000 damages, with interest thereon from the date of the death to the date of the entry of the judgment, in which case the judgment will be modified accordingly, and as so modified affirmed, without costs to either party.