McIntyre v. New York Central Railroad

(after stating the facts.)—It is now urged by the counsel for the appellant, that there was evidence that the negligence of the deceased contributed to the injury, and that, consequently, there can be no recovery, and he insists, that that was a question for the court to decide, and that it was error to leave to the jury the question of the plaintiff’s negligence or contributory negligence.

There was much evidence tending to show that in moving from the one car to the other, the deceased was but obeying the directions of the employees of the defendant, and it was eminently proper for the judge to have left to the jury the question, whether, under the circumstances disclosed, the deceased was guilty of any negligence in complying, or attempting to comply, with those directions. The learned judge properly told the jury, that they could judge whether it was safe for a

I am unable to discover any error in the charge of the judge, in reference to the damages which the plaintiff was entitled to recover. At the request of the defendant’s counsel, the judge charged the jury, that the burden of proof is upon the plaintiff, ■ to prove the pecuniary injury, and such facts as could enable the jury to determine what would be a fair and just compensation, with reference thereto, to the next of kin, to entitle the plaintiff to recover more than nominal damages; and, also, that the jury had no arbitrary discretion in regard to the amount of damages, but must be governed by the weight of evidence, as to what would be a fair and just compensation, with reference to the pecuniary injuries sustained by the next of kin. These directions were in strict accordance with the doctrine as laid down by this court in the case of Tilley v.

That portion of the judge’s charge on this subject, to which exception was taken by the defendant’s counsel, was also in harmony with the opinion of this court in the case last cited, and is but a reiteration of the doctrine there enunciated. We there said: “The jury are to give such damages as they shall deem a fair and just compensation, with reference to the pecuniary injuries x*esulting from such death. They ai’e not tied down to any precise rule, within the limit of the statute, as to amount, and the species of *injury sustained, the matter is to be submitted to their sound judgment and sexxse of justice. They must be satisfied that pecuniary iixjuries resulted; if so satisfied, they are at liberty to allow them from whatever source they actually proceeded which could produce them. If they are satisfied from the history of the family, or the intrinsic probabilities of the case, that they were sustained, by the loss of bodily care, or intellectual culture, or moral training, which the mother, in that case, had before supplied, they are at liberty to allow it.” The statute has set no bounds to the sources of these pecuniary injuries. The charge of the judge to the jury in the present case is unobjectionable, in the light of this authority.

Upon the trial, a witness was asked: “ At the time of the death of the deceased, what was she capable of earning?” This was objected to by the defendant’s counsel, on the ground, that it was not competent, on the question of the worth of this woman’s life to the next of kin. The court overruled the objection, and the defendant’s couixsel excepted. It does not appear that the question was answered. The witness was then asked: “ And what did she usually earn ?” This was also objected to, on the same ground, and the objection overruled and an exception taken. The witness answered:

Upon the authority of th.e case of Clarke v. Vorce ( 15 Wend. 193 ), the judge committed no error in allowing the notes of the testimony of the witness Seely ^ie mean^me *ffied), taken by Mumford upon the former trial, to be read on this trial. In that case, the witness testified, that on the former trial, he acted as counsel for the defehdant/and took very full and particular minutes of one Haight’s testimony; that he intended, at the time, to take down the words of Haight, but could not pretend to give his precise words; that he could not swear to Haight’s testimony, except from the minutes taken by him on that trial, and could not now testify that lie had taken down every word of his testimony, but he intended, at the time, to take down all he regarded as material. The supreme court thought the testimony should have been received. Chief Justice Savage observed: “ There are few or no cases where a cautious and prudent man will swear that his notes of testimony of a witness, taken at the time, contain his very words, and all his words.”

In Huff v. Bennett ( 6 N. Y. 337 ),- the learned judge who presided at the trial of this action, and admitted the notes of Seely’s testimony; in delivering the opinion

In the present case, the plaintiff called one of the counsel of the defendant, to prove the testimony given by the witness Seely, on a former trial of this action, he having since that trial died. He testified, that he was one of the counsel for the defendant in this action, was present at the former trial, and took notes of testimony, he had them there in court. He says: “So far as I took minutes, I took them as given by the witness, so far as I could; I designed to take the substance of the testimony, as given by the witness, and presume from that, I have; I have no recollection of the testimony, aside from what I have here.” On his cross-examination, he said: “Should judge that it was not possible for me to take the whole testimony verbatim; did not aim to take more than *the substance; do not say, that I have the whole language of the witness, nor the whole of his testimony.” In response to the court, the witness said : “ I have no recollection of the witness, or of the testimony, not the slightest whatever; I have his testimony on my minutes, and presume it is the substance of his testimony.” The plaintiff’s counsel then offered to read the evidence of Austin H. Seely, as given upon the former trial, as shown by the notes of testimony taken by the witness. The defendant’s counsel objected, on the ground, that it did not appear that the whole of the testimony was taken, or that the testimony, as given, was taken down, and that the necessary preliminary proof of the accuracy of the- notes had not been made. The court overruled the objection, and

The plaintiff brought his action, under the statute, as administrator of Mrs. Susannah Knight, deceased, on behalf of her next of kin, to recover damages for her death, alleged to have been caused by the negligence of the employees of the defendant, in November 1859. It was proved on behalf of the plaintiff, upon the trial, that Mrs. Knight, in company with her father, an old man, took the cars of the defendant at Schenectady, and proceeded to Syracuse, occupying the rear car of the train. At Syracuse, the car in which they were seated was detached from the train, and they were directed to go forward into the next car. The testimony on the part of the plaintiff was to the effect, that they had barely time to reach the next car, when the train was started. There were no seats in the car which they entered, and they were directed by a man carrying a *lantern, and appearing to be one of the employees of the road, “ to go forward—that there were seats forward.” In compliance with this direction, Mrs. Knight and her father attempted to reach the next forward car, the train being at that time in rapid motion, but in passing from the one platform to the other, she fell between the cars and was instantly killed. It was a dark and somewhat stormy night—a rain or sleet falling and freezing.

It was further proved, on behalf of the plaintiff, that

On behalf of the defendant, the conductor and brakeman on the train in question testified, that the deceased carried, a bandbox, bundle, basket and fiower-pot, and that" her father had a carpet-bag, and also that the direction to the passengers to pass into the forward car was made as soon as the train reached Syracuse, where a stoppage was made of some ten or twelve minutes.

The jury found a verdict for the plaintiff for $3500, and the special term denied the motion of the defendant for a new trial. The general term, on appeal, directed a new trial, unless the plaintiff should stipulate to accept a reduction of the verdict. This the plaintiff consented to do, and from the judgment entered accordingly, for $2387.57, the defendant appeals to this court.

It cannot be considered negligence on the part of the person killed, that she attempted to pass from one car to another, in obedience to the orders of the defendant. She was not only directed to go forward into another car, in the night-time, during a storm, and when the train was in motion, but it was necessary for her comfort and convenience that she should do so. The car to which she was directed to go, when the train stopped at Syracuse, wras filled with ^passengers, and the alternative was presented to her of incurring the risk of the transit, or remaining standing, with «u> aged companion, whose strength, it may well be concluded, was unequal to such a position. She had «

I admit, that passing from one car to another, in a dark and stormy night, when the train was in motion, incumbered with baggage, and having charge of an aged person,' was an act fraught with .imminent peril, and if done without sufficient reason, one involving great negligence. But, having been undertaken at the request of the company, it is to be regarded as their act, and attempted at their risk. Unless this view of the case is adopted, railroad companies may be' guilty of the grossest wrongs, without incurring liability. In performing their contract, they may require a feeble and inexperienced person to incur fearful risks, and then claim to be without fault in law, on the ground, that the passenger, who may have suffered an injury, was negligent in following their reckless directions. The very statement of such a case suggests the necessity of so administering the law as to obviate so great

There was some slight evidence that the next of kin of the deceased sustained some pecuniary loss by her death. She was, at the time of her death, about fifty years of age, industrious in her habits, and in the enjoyment of robust health. It also appeared, that she left three children living, who were supporting themselves, away from home. She was in constant communication with them, and was in the habit of making and sending to them some articles of clothing. It cannot, therefore, be said that her children had no pecuniary interest in her life, even if that term is used in its most limited signification. The extent of that interest was a question for the jury, and was fairly submitted to them on the evidence.

When we consider the defect which the statute was designed to remedy, it is taking too narrow a view of the matter, to say that the word pecuniary was used in so limited a sense, as to embrace only the loss of money. Such a limitation would, in many cases, render the statute a mere mockery, because it would afford no substantial relief, in the very cases in which it is most needed. The loss of the society of a deceased relative, the injury to the affections of those surviving, cannot be regarded as being within the remedy of the statute, because in no sense can the loss be regarded as pecuniary. But to children, the loss of a parent involves the loss of many other things which this court has heretofore regarded as of a pecuniary character, and as the subjects of consideration by a jury in assessing the damages under the statute. (Tilley v. Hudson River Railroad Co., 24 N. Y. 471 .) It is true, that these children were away from home, probably of full age, and not immediately dependent upon their mother for support. But the evidence also shows, that they were not '