Kirstine M. Lennox, Respondent, v. Interurban Street Railway Company, Appellant

Kirstine M. Lennox, Respondent, v. Interurban Street Railway Company, Appellant. Negligence—injury preventing the hearing of children — any damage resulting from that feature is too remote—the admission of ■ the evidence thereof, without exception, does not justify an erroneous charge. In an. action brought by a, woman to recover damages for personal injuries sustained by her, through the-defendant’s negligence in the sudden starting of one of its cars, /which rendered it impossible for her to bear children, it is improper for the court to allow the jury to award the plaintiff any sum as compensation for the loss which she has .sustained in consequence -of such inability, as such damages are too remote and speculative to constitute an element proper to be submitted to the jury. The fact that the defendant did hot ob j ect to the introduction of the evidence-establishing the plaintiff’s inability to bear children, did not preclude it from after-wards insisting that the jury should not be'allowed to award the plaintiff any ■ damages on that score. ' ' .. Appeal by the defendant, the Interurban Street Railway Company, from.a judgment of the Supreme Court: in favor of.the plaintiff, entered-in the office of the.clerk of the county of-Kings on the 28th day of March, 190.4, upon the verdict of a' jury for $4,000, and also from an order entered in said clerk’s office on the 29th day of March, 1904, denying the defendant’s motion for a new trial made upon-the minutes. Bayard H. Ames [F. Angelo Gaynor and Henry A. Robinson with him on the brief], for the appellant. James C. Cropsey, for the respondent. [MAJORITY — Miller, J.:] Miller, J.: The plaintiff has recovered a judgment for injuries sustained while á passenger of the defendant, by being thrown to the floor of one of its cars by the sudden starting of the car, which she claims resulted in a miscarriage, and produced a condition making it impossible for her to bear children. ' The court charged the jury: “ And likewise, with regard to the wife, as to the inability to bear a child, that is made an element of damages here by the pleadings, and it has been testified to,- and you will take that into consideration,-and determine what sum will compensate her because of such inability.” Further on the court said: “ Whatever damages you may award in that regard must be money damages — no sentiment.”. The defendant’s counsel specifically excepted to the court’s permitting the jury to consider inability to bear children as an element of damage, and also excepted to the charge as limited to money damages, as follows: “ I also except to what your Honor says with regard to the rule ,oft damages being the pecuniary loss for the inability, if there be any, to bear children. The Court: Well, would not a parent have the right to the earnings of a child during minority % ” The question of the learned court quoted suggests the theory upon which the court permitted the jury to speculate as to the pecuniary damages suffered for the loss of children unborn and unconceived. It is clear that such damages are too remote and speculative to constitute an element proper to be submitted to\a jury. (Butler v. M. R. Co., 143 N. Y. 417.) The respondent undertakes to sustain the judgment upon the theory that the defendant having permitted the evidence as to inability, to bear children to be received Without objection is precluded from insisting that it should not have been submitted to the jury as an element of damages. Undoubtedly a party cannot complain because of the admission of evidence received without objection, but that does not preclude him from insisting that the jury shall not be given an erroneous rule by which to measure damages, this even assuming that the evidence was not relevant to any issue as to the plaintiff’s injury, which we do not now decide. Tile- judgment and order appealed from must:, be reversed and a new trial granted, costs to abide the event. Hirschberg, P. J., Woodward, Jenks and Rich, JJ., concurred. . Judgment, and order reversed and new trial granted, costs to abide the event.