Heater v. Delaware Lackawanna & Western Railroad

Majority

p. 495

Mary O. Heater, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant.

Headnote

Negligence — collision between a wagon and a railroad train — contributory negligent, not imputed to a woman riding with her husband — injury to their child— proof as to the expense incurred for q physician’s services, not paid for — extra nursing and care of the child,

In an action brought by a woman to recover for money expended and liabilities incurred for medicine and medical expenses for her infant child, it appeared that while the plaintiff, with her husband and infant child, was riding in a'carriage across the defendant’s railroad at a crossing, the carriage was struck by one of the defendant’s trains which had given no warning of its approach, and the plaintiff’s husband was killed and her child injured.

At the time of the collision, in which the wagon was struck on the right side, the plaintiff’s husband was driving and the plaintiff was sitting on his left holding

p. 496

in her arms the child, which was thgn.fifteen months old. The accident occur. red on a stormy and sleety night in November. ' Both the- plaintiff and her husband were-unfamiliar with the crossing, and the train could only be seen for a distance of about sixty feet before the track was reached. I Held, that it could not be said that the plaintiff was guilty of contributory negli1 gence as matter of law in .failing to look around her husband to observe the approach of the train; ¡

That while it was probably true that the. plaintiff could recover for any liability she-incurred for physician’s services rendered necessary by her child’s injuries,

' even though she had not paid those claims, and no demand! for payment had been made-upon her, it was necessary that the -nature and exént of-such-liability should .be. clearly established before the defendant could be called upon to; pay the amount thereof; . ' •

That, there being'no proof of any liability incurred for nursing the child, or as to the extra time and* nursing required of the plaintiff, it was improper for the court to charge that the jury might estimate the time and ajward a reasonable sum for extra nursing and care required by the child.

Appeal by the defendant, The Delaware, Lackawanna and Western Railroad Company, from a judgment of the Supreme ■ Court in favor of the plaintiff,'entered in the office-of the clerk of the county of Sullivan on the 21st day of May;. 1903, upon the verdict of a-jury for $1,500, and also from an orden entered in said clerk’s'office on the 21st day of May, 1903, denying;the-defendant’s motion for a new trial made upon the minutes.

' Upon the 22d of Movernber, 1892, the plaintiff, with hpr husband and child, drove in a .buggy from Walpac to Belvedere in the State of Mew Jersey. Upon their return home they had occasion to cross the track of the defendant’s road at a place called Hope Crossing. The carriage was struck by one of, the defendant’s engines, plaintiff’s husband was killed-and the child was .seriously injured. This action was brought to recover for the services of the child, and also for moneys expended and liabilities incurred by reason of medical attendance and medicines rendered. necessary by reason of the injuries which the child sustained. Upon the trial- the plaintiff’s cause of action for loss of' services of the child was dismissed. She recovered, "however, a verdict of $1,500. From! the judgment entered upon this.verdict, and from the order denying defendant’s motion for a new trial, this appeal is taken. ; x

Hamilton Odell and Hammond Odell, for the appellant.

Walter K. Barton and William D. Tyndall, for the respondent.

' Defendant strenuously insists that this complaint should have been dismissed for the contributory negligence of the plaintiff. The horse was being driven by her husband, whose negligence confessedly is not imputable to her. She was riding upon his left, with the care of a fifteen months old child, in a stormy and sleety night in November. Defendant’s train came from her right without warning by bell or whistle. Both she and her husband were unfamiliar with this crossing, neither of them having ever passed it until the morning of the accident. It clearly cannot be said as a matter of law that the plaintiff was guilty of contributory negligence in failing to look around her husband to observe the approach of the train, which could only be seen for about sixty feet before the track was reached. If this were an action to recover for the death of the husband, who was driving, where his negligence was the question involved, a different rule might apply.

We think this judgment, however, must be reversed because of errors committed upon the trial. It is probably true that the plaintiff can recover for any liability she has incurred for physicians’ services made reasonably necessary by the injuries which her child sustained, even though she may not have paid those claims. Where, however, the claims have not been paid, and no demand appears to have been made for the payment of those liabilities, the proof should he very clear as to the nature and extent of those liabilities before the defendant should be called upon to pay therefor. Neither the nature of the services rendered by some of the different physicians employed, nor the extent of their services, is shown with any sufficient clearness upon which can be based a judgment for liability incurred therefor. Nor has the value of such services been adequately proved. The only evidence as to value is the evidence of a country physician, who has based an estimate without accurate knowledge either of the nature or extent of the services rendered, and as to some of the special services claimed to have been rendered, without adequate knowledge of the value of such services. Plaintiff has here recovered for the services of one physician employed by the defendants for whose services no liability whatever is shown against the plaintiff. Plaintiff has recovered for

p. 498

services of experts for work done in public hospitals known, as shown by the evidence, as free hospitals. Without specifying in detail defendant’s objections to evidence as to the value of the services rendered which we deem to have been improperly overruled by the court, it is sufficient to say that we find a proper foundation for a small part only of the judgment which has been rendered in this action. -

At the end of the charge the plaintiff’s counsel asked the court to charge that they might properly estimate the time and award a reasonable sum for extra nursing and care required by the child. To this the court answered, “Yes,” and the defendant excepted. There is no proof of any liability incurred for nursing of the child,.and even if "the mother could recover for extra time and nursing required of her, there is no proof of value of such time and nursing. There is no evidence upon which such an estimate of damage could properly be left to the jury, and it was error to allow them thus to increase the verdict as they might choose upon mere speculation.

For these reasons the judgment must be reversed and new. trial granted.

All concurred; Houghton, J., not sitting.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.