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Capone v. Norton

Decided: July 11, 1952.

MARY CAPONE, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF HARRY CAPONE, DECEASED, PLAINTIFF-RESPONDENT,
v.
HENRY K. NORTON, TRUSTEE OF THE PROPERTY OF NEW YORK, SUSQUEHANNA & WESTERN RAILROAD COMPANY, A CORPORATION, DEFENDANT-APPELLANT. PETER PANEPINTO, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF JEAN PANEPINTO, DECEASED, PLAINTIFF-RESPONDENT, V. HENRY K. NORTON, TRUSTEE, ETC., DEFENDANT-APPELLANT



Jayne, Colie and Grimshaw.

Per Curiam

The mishap out of which this litigation arose was the occurrence on June 19, 1948, of a collision at a railroad grade crossing in the City of Paterson between a motor vehicle driven by the decedent Harry Capone, in which the decedent Jean Panepinto was a passenger, and a diesel engine operated by the New York, Susquehanna & Western Railroad Company. The occupants of the motor vehicle sustained bodily injuries from which they immediately died. We are here concerned with the actions of the administratrix ad prosequendum of the estate of Capone and of the like representative of the estate of Jean Panepinto thereafter instituted against the defendant and consolidated for trial. R.S. 2:47-1, et seq.

The first trial on March 2, 1950, resulted in verdicts in favor of both plaintiffs awarding damages of $28,000 in the Capone case and of $42,000 in the Panepinto action. In the consideration of the motions for a new trial, the court resolved that the damages awarded were excessive in each

case and granted the plaintiff in the Capone case the alternative of accepting damages in the sum of $24,000 and a similar alternative to the plaintiff in the Panepinto case of consenting to a reduction of the award to the sum of $34,000. The reductions were accepted and judgments in the reduced amounts were accordingly entered.

The defendant prosecuted appeals to the Appellate Division of this court and the judgments were reversed on the ground that the reduced awards in the light of the pertinent evidence were so excessive as to necessitate a new trial limited in each case to the single issue of damages. 11 N.J. Super. 189 (App. Div. 1951). The Supreme Court, upon certification, affirmed. 8 N.J. 54 (1951).

The two cases, so consolidated, again proceeded to trial in December, 1951, and verdicts eventuated awarding $25,000 to the plaintiff in the Capone case and $15,000 to the plaintiff in the Panepinto action. The defendant's motions for another trial were denied by the trial court. The present appeal encompasses the propriety of the orders denying a new trial and the existing judgments.

The predominantly controversial question presented is whether the verdicts or either of them is so excessive as irresistibly to give rise to the inference of mistake, passion, prejudice, or partiality, and by that standard deemed to be palpably against the weight of the evidence. Hager v. Weber , 7 N.J. 201 (1951).

It is recognized that the jury could only fairly and justly compensate the parents in each case for a deprivation of a reasonable expectation of a pecuniary advantage which would have resulted from a continuance of the life of the deceased. R.S. 2:47-5, now as am. N.J.S. 2 A:31-5.

It was appropriately the primary function of the jury to say under all the circumstances disclosed by the evidence, taking into account all the uncertainties, contingencies, and reasonable probabilities of the particular case, whether there was such a well founded expectation of pecuniary benefit to the decedent's next-of-kin to be derived from a continuance

of the life of the decedent as could be estimated in money and so become a fair and just award of compensatory damages. Cooper v. Shore Electric Co. , 63 N.J.L. 558, 567 (E. & A. 1899).

We therefore endeavor to reconcile, if possible, the verdicts in the present cases with the evidence and all reasonable inferences and probabilities which the jury might have drawn from any of the proofs. In cases of this nature in which a jury is permitted to envision from the basic evidence the probabilities of ...


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