Pressman v. Mooney — 5 A.D. 121

Majority

p. 121

David Pressman, as Administrator, etc., of Ettie Pressman, Deceased, Respondent, v. Thomas J. Mooney, Appellant.

Headnote

Negligence — verdict upon conflicting evidence, sustained — evidence that the father required the services of his child, competent.

In an action brought to recover the damages resulting from the death of the plaintiff’s intestate caused by the alleged negligence of the defendant, it appeared that the deceased, aged seven years, in company with her sister, aged twelve and a half years, arrived at a corner of two streets in New York city; the elder sister stopped and looked to see if any wagons were coming, and she saw two wagons coming slowly towards her; she started across the street with the younger sister and when in the middle of the street saw that the two wagons were almost upon them, their speed having been suddenly increased; the elder sister tried to go backward and pulled her sister with her, but was unable to do so because the defendant’s wagon which ran over the younger sister was already upon her, and her own dress had become caught in the wheels of the other wagon and she fell down.

'The evidence of the defendant tended to show that the children came out suddenly from behind an ash cart in front of the wagons.

jReid, that, as the questions of fact were in dispute, the case was properly submitted to the jury, and their verdict thereon would not be disturbed;

That evidence that the father, who was also the plaintiff in the action, required the services of his little child in order to maintain his household, was competent upon the question of damages.

Appeal by the defendant, Thomas J. Mooney, from a judgment if the Superior Court of the city of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 11th day of December, 1895, upon the verdict of a jury, and also from an order bearing date the 9th day of December, 1895, and entered in said clerk’s office denying the defendant’s motion for a new trial mde upon the minutes.

Benjamin Yates, for the appellant.

This action was brought by the plaintiff as administrator of Ettie Pressman, deceased, to recover the damages resulting from the death of sai Ettie Pressman, who it is alleged sustained injuries from

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being run over by a team of horses and. truck owned by the defendant and under the control of his employee.

The evidence is somewhat confused because of the manner in which the principal witness for the plaintiff gave her testimony; but it would appear that the deceased, seven years old, in company with her sister Dora, then twelve and a half years old, on the 2d of October, 1893, went to visit a friend in Orchard street near Hester. They started to go to their home at 411 Grand street. "When they arrived at the southwest corner of Grand and Ludlow streets, they stopped, and the elder sister looked to see if there were any wagons coming. She saw two wagons coming slowly along Ludlow street, from Broome towards Grand street, and she testified that she had time to cross. The two started to cross Ludlow street, and when in the middle of the street while walking on the crossing, suddenly,, and without warning, she saw the two wagons almost upon them,, their speed having been unexpectedly increased. The elder girl thereupon tried to go backwards and to pull her sister with her, but was unable to do so because the wagon which ran over her sister was already upon her and her own dress caught in the wheels of the other wagon and she fell down. The younger child was killed.

Other witnesses were called upon the part of the plaintiff who testified that they saw the children attempting to cross the street and the two wagons, one of the witnesses stating that the wagontwere coming at a high rate of speed, the driver of the one who rar over the deceased using his whip and looking at the other drive’, trying to get ahead of him.

The evidence of the driver examined upon the part of the defendant in regard to the happening of the accident was to the effect that the girls came out suddenly from behind an ash cart in front of the’ wagons, and that the older one, as he says, “ ran out and she ired the young one away. She threw the young one away and let it out of her hand and it fell under my whiffletrees. The whifflerees knocked her down and I pulled up my horses. I almost knocked them down. I did not run over the child but I ran over far enough for to kill it.”

Another witness upon the part of the defendant, who/‘was a. policeman, testified that he did not notice the two little gi/s until they ran into the horses; that they ran into the horses about twelve;

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or fifteen feet off Grand street on Ludlow. He says: “ There was an ash cart on the southwest corner of Grand street and Ludlow street. The tail of the ash cart was just about a foot or two on the crossing. There was one horse attached to the ash cart, and it was in Ludlow street, facing south. ’When I noticed the little girls they came around the horse’s head of the ash cart.” He further says: “ I saw two little girls shoot out and run up against the horses. The smaller one of the children was toward the wheel; I saw her fall. As she fell I started to cross the street and the driver then pulled the horses up.” This witness stated that the horses were going at the rate of five or six miles an hour.

Upon this state of the evidence the questions of fact were submitted to the jury and the jury found a verdict in favor of the plaintiff. "We see no ground upon which it should be disturbed. There was evidence tending to show that due diligence had been used by the older sister who was in charge of the younger, and that the accident occurred through the reckless driving of the employee of the defendant. It is true that the evidence upon the part of the defendant gives an entirely different version of the happening of the accident; but that was a question for the jury, and they having solved it in favor of the plaintiff, we cannot interfere.

It is urged that the court erred in admitting evidence as to the condition of the plaintiff’s family and as to the necessity of the plaintiff’s requiring his small children to work in order to help provide for the support of his household. "We do not see, however, but that this evidence was entirely competent. The plaintiff was bound to establish what pecuniary damage the next of kin of the infant had suffered by reason of her death, and the contribution which, in view of the pecuniary situation of the family, she might be expected to make was certainly an element necessary to be considered by the jury.

Other exceptions are taken in the case, but none of them seem to be of sufficient gravity to need any special notice.

The judgment and order should be affirmed, with costs.

Barrett, Rumsey, O’Brien and Ingraham, JJ., concurred.

Judgment and order affirmed, with costs.