This action was brought under the provisions of section 1902 of the Code of Civil Procedure to recover damages for the death of Pincus Seifter, a man about forty-five years of age, who is alleged to have been injured by the defendant’s negligence in the operation of its street surface railroad. The plaintiff alleges, in addition to the formal averments, that the defendant operated its street surface railroad by electricity through and along Myrtle avenue, a public highway in the city of Brooklyn; that on the 19th day of Decern
.On this appeal the defendant urges that the plaintiff failed to sustain the burden of proof upon the issue of a lack of contributory negligence on the part of the deceased, relying particularly upon the case of Johnson v. Brooklyn Heights R. R. Co. (34 App. Div. 271). In the case at bar the plaintiff showed that Mr. Seifter had been driving his horse, attached to a covered business wagon, the rear end of which was closed by a curtain, along Myrtle avenue at the side of the track; that when within a block of the point where the accident occurred the deceased was obliged to turn upon the track of the defendant, for the purpose of getting around a vehicle which had been left standing in the roadway ; that immediately after turning upon the track Mrs. Seifter, who was riding on, the seat with the deceased, leaned over and looked out of the left side of the wagon to the rear, for the purpose of ascertaining whether a car' was coming, but that she saw none; that the horse was trotting slowly, and when within half a block of the place of the accident that Mrs. Seifter again looked back and that no car -was in sight. When the wagon had been running in the car track about one block it was struck from the rear, the deceased was thrown out, sustaining the injuries complained of. This all occurred in broad daylight upon a street which is much traveled, and in a position where the defendant’s servant in the exercise of reasonable care could not have
It is urged, likewise, upon this point, that the learned trial court erred in charging the jury. It was stated in the charge, in speaking of the fact that it was claimed that the plaintiff was not in a position to have made an observation of the approach of the car, that “ if he could not have observed the approach of the car, then he was under no legal requirement to make the observation.” Defendant’s counsel said:I wish to call your Honor’s attention, by way of exception to your statement in' speaking of Mr. Seifter driving a wagon : Your Honor said that if he Could not see the approach of the car, the law did not throw upon him the obligation — I except to that.” Plaintiff’s counsel then asked the court to charge upon that subject “that the question for the jury is whether the deceased, by the use of reasonable diligence on his part, ought to have become cognizant of the approach of the - car in time to have avoided the collision.” To this the court responded: “Very well; I Will modify it in that way, although I think it is the same in substance.” Counsel for defendant excepted to this remark of the court, but whether to the modification suggested by the plaintiff’s counsel in which the court acquiesced, or to that portion of the remark in which the court expressed the opinion that the charge “ is the same in substance ” as
There was a conflict of evidence as to the cause of death, based upon expert evidence and involving the germ theory, it being contended on the part of the plaintiff that death resulted from the injury to the leg of the deceased, followed by disorganized material at the seat of the fracture, which was taken up by the blood and carried-through the system by successive stages, manifesting itself in the thigh and groin, and finally resulting in carrying septic material into the lungs, producing pneumonia, from which the patient died. Without following counsel through a scientific discussion of the germ theory, it is sufficient to say that the evidence disclosed no other wrong or misconduct than that" of the defendant intervening between the accident and the death of plaintiff’s intestate, and that the evidence is sufficient to support the finding of the jury that death resulted from the accident which produced the wound whose poisonous discharges through the blood caused the disease which eventually produced death. (Ginna v. Second Avenue R. R. Co., 8 Hun, 494, 501.)
This action has for its ooject the recovery of the pecuniary damages suffered by the next of kin of the deceased, and it was clearly competent, as bearing upon this question, that the plaintiff should show the earning capacity of the deceased, and the extent to which he contributed to the support of his family. The evidence showed that the income of the deceased was derived from his own labor, without the investment of capital in any proper sense, and while it
We have examined the other questions presented, but do not find reversible error, and conclude that the judgment is not' excessive, but is warranted by the evidence.
The judgment and order appealed from should be affirmed, with costs. • .
All concurred, except Hirsohberg, J., dissenting, and Bartlett, J., absent.
Judgment .and order affirmed, with costs.