Hyperlawhypertext legal database Devine v. New York City Railway Co. 96 N.Y.S. 1058

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Devine v. New York City Railway Co.

96 N.Y.S. 1058 Court N.Y. App. Term Decision date 1905-12-21 English

Delivered by BISCHOFF, J.

Contents

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p. 1058
DEVINE v. NEW YORK CITY RY. CO.
(Supreme Court, Appellate Term.
December 21, 1905.)

Headnote

Damages—Loss of Services.
In an action for injuries to plaintiff’s son, where there was no evidence that plaintiff lost the benefit of his son’s services, except as measured by his earnings, nor that the future earnings of the son would in reasonable probability be lessened as a result of the accident, and no expenses other than for medical services were proven, the only damage recoverable was for loss of earnings and medical expenses.
[Ed. Note.—For cases in point, see vol. 15, Cent. Dig. Damages, § 240.)
Appeal from Municipal Court, Borough of Manhattan, Tenth District.
Action by James Devine against the New York City Railway Company. Rrom a judgment in favor of plaintiff, defendant appeals.
Affirmed on condition.
Argued before SCOTT, P. J., and BISCHOPP and MacLEAN, JJ.
William E. Weaver, for appellant.
Thomas J. O’Neill, for respondent.

The proof justified the finding that the plaintiff’s son was injured through negligence upon the part of the defendant, and without contributory negligence, but the damages awarded were obviously excessive. No items of damage other than loss of earnings and medical expenses were recoverable, since there was no proof to support a finding that this plaintiff lost the benefit of services of the boy, other than as measured by his earnings, nor were expenses, except for medical services, proven. In the most favorable aspect of the proof the recovery could not properly exceed $47.50, being five weeks’ loss of earnings at $7.50 a week, and the doctor’s bill of $10; for the evidence was utterly devoid of a suggestion that the future earnings of the boy were to be lessened, as a matter of reasonable probability, through the effects of this accident. j

The judgment must therefore be reversed, and a new trial ordered, with costs to appellant to abide the event, unless the respondent shall stipulate to reduce the recovery to the sum of $47.50, in which event the judgment, as reduced, will be affirmed, without costs. All concur.