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Lang v. New York, Lake Erie & Western Railroad

4 N.Y.S. 565 Court N.Y. Gen. Term Decision date 1889-02-11 English

Delivered by Barnard, P. J.

Contents

Majority

p. 565
Lang v. New York, L. E. & W. R. Co.
(Supreme Court, General Term, Second Department.
February 11, 1889.)

Headnote

1. Master and Servant—Scope of Authority—Brakeman—Injuries to Trespasser.
A boy 11 years of age was stealing a ride on a freight car. The boys of the neighborhood were in the habit of jumping on the cars, and riding about six blocks to a station. In response to the brakeman’s order to get oil, the boy asked him to wait until he got to the station. The brakeman began throwing pieces of coal at him, and pursuing him from car to car. Just as he was getting ready to jump, the brake-rolled a large lump of coal, which struck him on the head, knocking him from the car, and under the train, which was going about 10 miles an hour. Held, that the acts of the brakeman were within the general scope of his authority and business, and that the wrong done was caused by a mistake in judgment in driving off the boy, for which the company was liable.
2. Damages—Measure of—Injury to Child.
The evidence showing that the injury would make the boy more helpless, it was proper to charge, in an action by the father, that plaintiff was entitled to damages for the care and nurture of the child so far as they were made more expensive by the injury, though there was no proof that there would be greater expense in consequence of the injury, as from the nature of the case there could be no positive proof further than that.
3. Same—When not Excessive.
It appearing that the injury necessitated the amputation of the foot and a portion of one leg, a verdict for the father of §1,500 would not be disturbed as excessive.
Appeal from circuit court, Kings county; Cullen, Justice.
Action by John Lang against the New York, Lake Erie & Western Railroad Company for damages caused by a brakeman knocking plaintiff’s son, a boy 11 years old, from a freight train while in motion, whereby the boy’s foot was crushed, necessitating the amputation of the foot and a portion of the leg. The court charged the jury, among other things, that the father had an interest in the child to the same extent, and to a certain degree of the same character, that he would have in a chattel. “He is bound to support the boy, and take care of him, to the extent of his means, and anybody who injures the child so as to make that burden of support more onerous and expensive injures the father, and of course must compensate him. The father is also entitled to the services of the child, his assistance and earnings, and any one who negligently injures the child so as to deprive him of the power of earning money, and assisting the father, must compensate him for that; therefore, if this plaintiff is entitled to recover a verdict at all, he is entitled to compensation for all the damages he may suffer by reason of this injury to his child, which will increase the care and expense, or diminish the earning power, of the child from the time of the occurrence till the child becomes of age.” Verdict for plaintiff for $1,500, and from a judgment thereon, and from an order denying a motion for new trial, defendant appeals.
Argued before Barnard, P. J., and Dykman and Pratt, JJ.
£, F. Tracy, for appellant. Samuel Keeler, for respondent.

The plaintiff’s son, a boy of 11 years of age, got on a freight car of defendant at Hoboken, H.

p. 566
other boys. On this particular occasion a brakeman, after the train had started, told the boy to get off. The boy replied: “ Wait until you get to Wehawken.” The brakeman replied, “No,” and began to throw pieces of coal at the boy. The boy retreated to the next car behind him, and the brakeman pursued. Just as the boy was getting ready to jump off [the brakeman rolled a large lump of coal on the top of the car, and the coal struck the boy on the head. The boy at once fell off from the car, went under the wheels, and cut his foot and part of his leg. At the time of the accident the train was going about 10 miles an hour. Upon this statement of facts, as found bythejury.an action is made out for the injury. It was not a willful wrong, and it was a, great mistake in judgment upon the part of the brakeman. The boy was very young, and the train was going fast, and the means used by the brakeman seem to have for an instant rendered the lad insensible, and the result was occasioned thereby.

It is not necessary to show specific order to the brakeman by the master to drive off boys who were “stealing a ride.” The brakeman was engaged in the master’s business, and acting within the general scope of the authority. He simply did not maintain his self-control, or use good judgment as to the time when it was safe to drive the trespassers from'the train. Rounds v. Railroad Co., 64 N. Y. 129 . The brakeman was apparently engaged for the defendant, and clearly was not pursuing his own purpose, and so the jury has found. The action is therefore proven.

The judge charged the jury that they could give damages for the care and nurture of the child so far as they were made more expensive by the injury. There was no proof that there would be greater expense in consequence of the injury, but there was proven an injury which, of necessity, made the child more helpless, and, from the very nature of the case, there could be no positive evidence given further than this tact. The jury must estimate it as they would estimate the value of a life, with no more specific basis. O'Mara v. Railroad Co., 38 N. Y. 445 . The case of Cuming v. Railroad Co., 109 N. Y. 95 , 16 N. E. Rep. 65 , is not adverse to this case. The point in the case was whether the parent could recover for an estimated further surgical operation, and the court held that such an item pertained to the child’s action, and not to the action for loss of service. The case holds that a jury can estimate further loss of service for expense, and such evidence as can be given. If the jury could take into consideration the estimated incurred cost of caring for and bringing up a crippled child, the verdict is fully supported by the evidence. Eifteen hundred dollars is not an extravagant verdict for such a case, nor is it even exaggerated. The judgment ought therefore to be affirmed, with costs. All concur.

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