Kelly v. Twenty Third Street Railroad — 14 N.Y. St. Rep. 699

Majority

p. 699

John Kelly, as Administrator, etc., Resp’t v. The Twenty Third Street R. R. Co., App'lt

(New York Court of Common Pleas, General Term,

Filed February 6, 1888.)

Headnote

1. Negligence—Injuries—Action for damages—Pecuniary loss—Evidence REQUIRED.

When an action is brought by a person injured, to recover damages for such injuries, and for the pecuniary loss sustained in consequence, some evidence must be given showing the existence and extent of the damages.

3. Same—Death occasioned by—Action for damages—Pecuniary loss NOT REQUIRED TO BE SHOWN.

This rule has not been applied to actions brought by an administrator to recover for the pecuniary injury sustained by the next of kin from the death of a person caused by the negligence of another

p. 700

3. Same—Same proof—Immediate and collateral kindred.

The courts of this state have not discriminated, between immediate and collateral kindred of the deceased, or required more or different proof in. the case of the latter than in the former.

Appeal from a judgment entered on the verdict of a, jury, and from an order refusing a new trial.

C. Stickles, for resp’t; L. W. Russell, for app’lt.

The action was brought to recover for the pecuniary loss sustained by the next of kin of Peter Morris, who died intestate.

He was killed, as claimed by the plaintiff, through the negligence of the defendant.

There was conflicting evidence both as to the negligence of the deceased, and of the defendant, and we think there was no error in the submission of these questions to the jury

Peter Morris left no father, mother, widow, children, or other persons dependent on him for support. His only next of kin were a sister and brother living in Ireland, and three nephews in_ this city. He was by occupation a junk dealer. The testimony did not show he had ever done any - thing to support, or in any way assist, any of these relatives while he lived, nor did it show what he earned, nor what, if anything, the value of his life was to his next of kin.

Upon this state of facts, the defendant moved to dismiss the complaint on the ground, among others, that there was no basis of damages, or for more than nominal damages, which was denied, and defendant excepted.

We are now asked to apply to this case the rule laid down in Leeds v. Metropolitan Gas Light Co., 90 N Y., 26 .

That action was brought by the person injured, to recover damages for such injuries, and for the pecuniary loss sus tained in consequence; and the court held, where actual pecuniary damages are sought some evidence must be given showing their existence and extent. This rule is both just and salutary.

But it has never been applied, as far as we are aware, to actions brought by an administrator, to recover for the pecuniary injury sustained by the next of kin from the death of a person caused by the negligence of another.

Nor have the courts of this state discriminated between the immediate and collateral kindred, and required more or different proof in the case of the latter, than in the former although this has been done in some other states, where it is held there must be some direct proof that the collateral kindred had been supported by the deceased, or

p. 701

that there was a probability of their receiving support from him, had he lived. Chicago v. Scholten ( 75 Ill., 468 ); Chicago and N. W R. R. Co. v. Moranda (93 Id., 302); Grotenkemper v. Harris (250 St., 512); and, in our opinion, such a discrimination might well be made.

The judge’s charge, we think, was in strict conformity with the law of this state, as laid down in Lockwood v. N. Y. L. E. & W. R. R. Co. ( 98 N. Y., 523 ), and cases there-cited.

On this charge the jury awarded the plaintiff $1,000 damages, and as the law stands, we cannot say they were excessive.

The judgment should be affirmed with costs.