Dorman v. Broadway Railroad

We are of opinion that, upon the evidence in the case, the questions as to contributory negligence of the deceased, and as to the negligence of defendant’s driver, were properly submitted to the jury, and that the charge of the learned trial judge on both questions was a correct statement of the law.

The deceased, a boy of the age of ten years, attempted to cross Ralph avenue, in this city, in front of an approaching car, operated by the defendant, and the witnesses on both sides agree that he fell while attempting to so cross the street. John Savage, the driver of defendant’s car, testified that he saw the boy fall two feet in front of the heads of the horses, and that the car could be stopped in a space of twelve or fourteen feet. He also said that the two front wheels of the car ran over the deceased, and that the distance from the horses heads to the front wheels was nineteen feet, showing that if he had stopped the car in a space of fourteen feet, as he admitted could be done, the deceased would have been seven feet in front of the forward wheels and would not have been run over. There was testimony for the plaintiff tending to show that the driver, if attending to his duties, and if he was driving at a proper rate of speed, could have stopped the car beyond any question in time to prevent any injury to the boy; but we think,

The question of contributory negligence of the deceased was also one of fact. The case of Mentz v. Second Avenue-Railroad Company (3 Abbott’s Court of Appeals, Dec., 274,. is directly in point. Judge Hunt there says: “To fall by accident, by sickness, by the inteference of another, by means of a broken rail, or by stumbling, is not a result that a prudent man is bound to anticipate or provide for in crossing a public street. He is not bound to allow for such an occurrence in crossing a street, much less is such a provision required of a lad of eight years.”

The law applicable to this case is so clearly and concisely stated in the above quotation, that it is unnecessary further to consider the question of contributory negligence.

We are, however, compelled to reverse the judgment and grant a new trial for error in the refusal to charge the twelfth and eighteenth requests, which are as follows: “Twelfth Request—The plaintiff can only recover such pecuniary damages as he may have suffered, or will suffer, by reason of the death of the child.

He cannot recover for any suffering endured by the child, nor can he recover for any mental suffering upon his own part.”

“Eighteenth Request—The jury have no right to give damages as a punishment to the defendant; they can only give such damages as the plaintiff may have suffered and shall suffer, and no more.”

The .rule is no doubt as stated in the brief of counsel for the respondent, that where the judge has in the charge stated the true rule upon any branch' of the case, he may decline any request to charge further upon the subject. The difficulty in the present case is, that the judge simply stated in his charge that the administrator was entitled to recover such amount of damages under the statute as they deemed to be a fair and just compensation for the pecuniary injuries resulting from the decedent’s death to the person or persons for whose benefit the action was brought, which is substantially the language of section 1904 of the Code. We think that the defendant had a legal right to have the jury instructed that damages could not be given for the suffering of the child or for mental suffering on the part of the father. The expression ‘ ‘ pecuniary injuries ” is general and without explanation the jury may have thought that mental suffering was included. We think that the court

The judgment and order denying a new trial must be reversed and a new trial granted, costs to abide the event.

Van Wyck, J., concurs.