Huerzeler v. Central Cross-Town Railroad — 48 N.Y. St. Rep. 649

Majority

p. 649

Fritz Huerzeler, Resp’t. v. The Central Cross-Town Railroad Company, App’lt.

(New York Common Pleas, General Term,

Filed November 7, 1892.)

Headnote

1. Railroad—Street—Negligence—Evidence—Damages.

In an action to recover for the death of a child five years old, by

p. 650

the negligence of a horse railway company, it appeared that defendant’s car was running at twice the speed allowed by law; that the driver saw the child crossing the street when thirty-five feet away, and neither slackened speed or applied the brake; that if the brake had been applied it would have stopped the car before striking the child; that the child heard the driver’s cry, and started to run, but that the horse struck her within "two seconds thereafter. Held, that the evidence was sufficient to warrant a verdict for plaintiff, and that a verdict for $2,000 damages was not excessive.

2, Same-Change to «toby.

Such case was tried upon the postulate that the child was non sui juris, but the court charged that “ a recovery can be had if the negligence of the defendant was the sole cause of the injury, and no negligence of the child contributed to it, ” and that * * if the jury find that the deceased’s own negligence contributed to her death, they must find for the defendant.” Held, that upon this instruction the verdict for the plaintiff necessarily negatived the fact of the child’s contributory negligence, and hence the parents’ negligence, if any, was ineffectual to defeat a recovery.

3. Appeal—Review of bequests to chabge—Exception must be specific.

To raise on appeal any question upon the ruling of the trial court as to' requests to charge, the exception must be specific, and point out the particular request to which it is intended to apply.

Appeal from judgment on verdict and order denying new trial. Action by administrator for death of his daughter by negligence of defendant. The deceased child was five years old, and bright and healthy.

The verdict was for $2,000.

Henry Schmitt and Charles H. Lellman, Jr., for resp’t; Robert Sewell, for app’lt.

The case was tried upon the postulate that the child was non sui juris. Nevertheless the learned trial judge charged that “ a recovery can be had if the negligence of the defendant was the sole cause of the injury, and no negligence of the child contributed to it; ” and, more explicitly still, that “if the jury find that the deceased’s own negligence contributed to her death, they must find for the defendant. ” Upon this instruction the verdict for the plaintiff necessarily negatives the fact of the child’s contributory negligence; and hence, the parent’s negligence, if any, was ineffectual to defeat a recovery. McGarry v. Loomis, 63 N. Y., 104 .

Supposing, however, the imputed negligence of thp parent in the case, it was not negligence per se to suffer the child to play in the street, Kunz v. The City of Troy, 104 N. Y., 344 ; 5 St. Rep., 642 ; Birkett v. Ice Co., 110 N. Y., 504 ; 18 St. Rep., 130 , and the verdict is conclusive of the question in favor of the plaintiff.

The inquiry then is, whether the evidence suffices to authorize the inference of defendant’s negligence and the child’s non-negligence.

. Evidence that the car was running as fast as twelve miles' an hour, twice the rate allowed by law ; that the driver saw the child thirty-five feet away, and neither slackened speed . nor applied brake; that if he had applied the Brake he would have stopped the car before striking the child, is surely plentiful proof of" defendant’s negligence.

As to the child’s non-negligence the case is equally clear. She

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had the right to pass over the street elsewhere than at a crossing, Moebus v. Herrman, 108 N. Y., 349 ; 13 St. Rep., 648 ; while so passing she heard the cry of the driver, and “ started to .run, and as she started to run the car carne so fast that the horse and car struck her a second and a half or two seconds from the time the driver hollered.” Upon this statement of the occurrence the jury; were well warranted in exonerating the child from the imputation of negligence.

But, the mere negligence of a plaintiff is not enough to defeat his recovery; his negligence must be a contributing cause of the injury. Assuming, then, the negligence of the child, it is still apparent that the negligence of the defendant was the sole cause of the injury; for, after discovering the peril of the child, the driver had ample time and opportunity, by ordinary care, to avert the impending catastrophe. -- Hence, it was the lack of that care on his part alone which occasioned the casualty, the negligence of the child, if any, was not a contributing agency. Grand Trunk R. Co. v. Ives, 144 U. S., 409 ; 1 Sher. & Red. on Neg., §§ 99, 100, notes.

The evidence was ample to authorize the verdict.

Appellant contends that though the verdict be valid the damages are excessive; but the clear weight of authority is to the contrary of the proposition. Birkett v. Knickerbocker Ice Co., 110 N. Y., 504 ; 18 St. Rep., 130 ; Ihl v. R. R. Co., 47 N. Y., 317 ; O'Mara v. R. R. Co., 38 id., 445 ; Oldfield v. R. R. Co., 14 id., 310; Bierbauer v. R. R. Co., 15 Hun, 559 ; 77 N. Y., 588 ; Houghkirk v. R. R. Co., 92 id., 219 (reversal on another point).

Appellant imputes error to the charge and refusal to charge; but the point is not available upon an “ exception to the granting of the requests on the other side and the refusal to charge those of mine that were not charged.” Read v. Nicholas, 118 N. Y., 224 ; 28 St. Rep., 867 ; Newall v. Bartlett, 114 N. Y., 399 ; 23 St. Rep., 732 ; Smedis v. R. R. Co., 88 N. Y., 14 .

The exceptions to evidence taken below are not pressed upon the appeal.

On review of the record we perceive no error available to appellant ; and upon the evidence we are entirely satisfied with the verdict.

Judgment and order affirmed, with costs.

Bookstaver and Bischoff, JJ., concur.