Lang v. New York, Lake Erie & Western Railroad

4 N.Y.S. 565 | N.Y. Sup. Ct. | 1889

Barnard, P. J.

The plaintiff’s son, a boy of 11 years of age, got on a freight car of defendant at Hoboken, H. J. The object of the boy was, and it seems to have been a habit with boys in the neighborhood, to ride some six blocks to Wehawken. The plaintiff had no permission to ride, nor did the 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.