Oldfield, Adm'r of Downie, deceased, against The N. Y. and Harlem R. R. Co.

Oldfield, Adm’r of Downie, deceased, against The N. Y. and Harlem R. R. Co. A child of from six to seven years of age was run over and killed by one of the defendants’ cars, and plaintiff, as administrator of the child, brought suit (Laws of 1847, ch. 450, amended by Laws of 1849, ch. 256) to recover damages for the death of the child; Held, that the question of negligence or not, the evidence on that point being contradictory, was properly left to the jury; and Held, fwrther, that no proof of any pecuniary or special damage to the plaintiff, or next of kin, in consequence of the death of the child, was necessary to sustain the action. The complaint contained but a general averment of negligence on the part of the defendant; evidence to show that there wore no guards in front of the cars was held admissible in order to prove negligence. Where the general tenor of the judge’s charge on a particular branch of the case is correct, a general exception “ to all that part of the judge’s charge ” raises no question for review of a particular paragraph in it. Where a trial and general verdict have been had, this court can deal only with questions of law upon exceptions duly taken; and cannot consider whether the damages have been excessive, or the verdict against the weight of ■ evidence. The “ act requiring compensation for causing death by wrongful act, neglect or default ” ( Laws of 1847, ch. 450, amended by Lancs of 1849, ch. 256 ), considered by Wright, J. The action was by the administrator of Hetty Downie, a child about seven years old, who was alleged to have been killed in May, 1849, by the negligence of the defendants. The complaint, after alleging the negligence, averred that an action had accrued to the administrator to demand and have, from the defendants, compensation in damages for the injury done to the next of kin of the deceased by-their Wrongful act. The plaintiff gave evidence tending to show that Hetty Downie, a girl about seven years of age, of more than ordinaryintelligence and activity, and who had attended a public school for more than a year, was, in May, 1849, returning from school, and had to cross Centre-street, at the corner of Walker-street, in the city of New-York. Centre-street ran nearly north and south, and was occupied in part by a double track of the defendants’ road. Walker-street crossed it at right angles. When the deceased, who was passing up Centre, reached the corner of Walker and Centre streets, a small car, belonging to the defendants, was passing down on the west track, and immediately after it passed she started to cross Centre. When on or near the east track, she discovered a large passenger car, drawn by four horses, coming up at speed, and then ran, in a diagonal direction, towards the northeasterly corner of Walker and Centre streets; but before she got clear of the track, she was struck by the off leader of the team attached to the car and knocked down, and the car passed over her, and some distance ahead, before being stopped. She was thrown across one of the vails of the east track, and crushed and mangled by the wheels of the car so that she died the same afternoon. When the deceased attempted to cross the street, the horses attached to the large car were forty or fifty feet below the cross-walk, and when she commenced running diagonally, to avoid the horses, they were twelve or fifteen feet below the crossing. The driver was called to to stop by several persons, but did not. He was conversing with an acquaintance who stood beside him on the platform, and was driving his horses on a fast trot. There was nothing to prevent his seeing the child, if he had been looking out. There was no object between the driver and the child, except the man on the platform. If he had seen her, he could have turned his horses so as not to have run over her. There was also evidence, on the part of the plaintiff, tending to show that the car was not provided with suitable safeguards and brakes for stopping. It was also shown that the deceased lived with her mother Mrs. Oldfield, who was her next of kin; and that she was an unusually intelligent and active child. A witness, called by the plaintiff, was asked whether there were any guards in front of the car. The defendants’ counsel objected to the question respecting the construction of the car, there being nothing in the complaint on that subject. The court decided that the plaintiff might show anything in the construction of the car by which, if otherwise, the accident might have been prevented. To this decision the defendants excepted. On the plaintiff resting, the defendants’ counsel moved to dismiss the complaint, on the following grounds: First. That the accident was occasioned by negligence on the part of the plaintiff, or the child ; Second. That there was no proof of any pecuniary or special damage sustained by the plaintiff, or by the next of kin, in consequence of the death of the child. The court denied the motion, and the defendants’ counsel excepted. Evidence was then given by the defendants tending to show that there was no defect in the construction of the car, and that the driver was attending to his horses at the time of the casualty; that the deceased ran behind the small car as soon as it passed, and struck against the horses of the large car, and was thrown down and run over before the car could be stopped. The judge charged the jury at length on the question of negligence of the parties, to which no exception was taken. He then charged as follows: “ The remaining question in this case is one of damages. This action is brought under a peculiar statute giving an action to the next of kin when death is caused by the negligence of another. The damages in any event are limited at $5000, and the statute has declared what the measure of damages shall be. The next of kin may recover, in such a case, compensation for the pecuniary injury resulting from the death. As in the case of a husband or a 'father, upon whom a wife or family are dependent for support, the statute contemplates that ample compensation shall be made for the pecuniary loss sustained by such a death. This is not such a case. It is the loss of a child, and the plaintiff, as the representative of the next of kin, recovers, if he has satisfied you that death was occasioned by the culpable negligence of the defendants, whatsoever pecuniary loss the next of kin, the mother in this instance, maij be supposed to incur in consequence of the loss of this child. In the words of the statute, you are to give what you shall deem fair and just, with reference to the pecuniary injury resulting from the death. I will not, as the counsel for the plaintiff requested, instruct you that the plaintiff may recover for the physical suffering of the child, or the anguish of mind inflicted upon the parent by such a calamity; unless, in the latter case, it was attended with pecuniary loss, of which there is no proof. The measure of compensation is strictly pecuniary, to indemnify fully for any pecuniary loss that may have attended or resulted from the death of this child.” The case states that “to all that part of the judge’s charge which related to the amount of damages the defendants’ counsel excepted.” There was a verdict and judgment for plaintiff for $1300. Defendants appealed to the supreme court at general term, where the judgment was affirmed, and they now appeal to this court. C. W. Sandford, for the appellants. N. Hill, Jr., for the respondent. [MAJORITY — Wright, J. Comstock, J.] Wright, J. The inquiry as to guards in front of the car was not improper; at least, not for the reason assigned. The action being founded on the negligence of the defendants, it was competent to deduce it, either from the conduct of the driver, or the default of the defendants themselves in providing unsuitable vehicles, or from a combination of those causes. The complaint averred that the death was caused by the negligence and default of the defendants and their agents and servants. This authorized evidence of the defendants’ neglect or misconduct tending to produce the injury, without a more particular statement in the pleading. The dismissal of the complaint was properly denied. Evidence adduced by the plaintiff tended to show gross negligence on the part of the defendants. The circumstances under which the death occurred, as detailed by the witnesses, were not conclusive, in law, that the injury was occasioned by the fault of the child, or that such fault contributed to produce it. The question of the negligence of the parties was one, under the proof when the plaintiff rested, eminently for the consideration of the jury. Nor was the court justified in nonsuiting the plaintiff for the reason that there was no proof of any pecuniary or special damage sustained by the mother of the child in consequence of its death. Sufficient evidence had been given to warrant a verdict for the plaintiff, on the ground of injury to the next of kin, if only for nominal damages. Nominal damages, at least, were recoverable, unless the statute under which the action was brought be construed as inapplicable to a case like the present, where the injury caused the death of a child of tender years and yet in a dependent state^. The defendants claimed no such construction of the law nor do we think that it is susceptible of it. But one exception was taken to the charge, and this is of the most general kind. It was to all that part which related to the amount of damages. There were severa* propositions stated, relating to this question, entirely unex ceptionable. Indeed, the jury were instructed in the words of tiie statute; and it is not claimed that more than a single observation of the judge was erroneous. Such an exception is not now available. The objections should be specifically taken; and where a number of propositions are stated, the correctness of some of which is not questioned, and the exception is general to all, it has often been held that such an exception presents no question for review on appeal. (Hart v. The Rensselaer and Saratoga Railroad Company, 4 Seld., 37; Caldwell v. Murphy, 1 Kern., 416; Decker v. Matthews, 2 id., 313.) But were this otherwise, I am inclined to the opinion that there was no error in that part of the charge which related to the question of damages. The action was brought under a special statute, passed in 1847, and amended in April, 1849. (Laws of 1847, 575; id., 1849, 388.) This act provided that whenever the death of a person should be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who or the corporation which would have been liable, if death had not ensued, should be liable to an action for damages, to be brought by and in the name of the personal representatives of such deceased person, notwithstanding the death of the person injured; the sum recovered to be for the exclusive benefit of the widow and next of kin of such deceased person, and to be distributed to such widow and next of kin in the proportions provided by law in relation to the distribution of personal property left by , persons dying intestate. The act further authorized the jury, in any such action, to give such damages as they should deem fair and just, with reference to the pecuniary injury resulting from such death to the wife and next of kin of such deceased person. The amendment in 1849 limited the damages to a sum not exceeding $5000, and made every agent, engineer, conductor or ether person in the employ of such company or persons, through whose wrongful act, neglect or default the death of a person shall have been caused, liable to indictment, and, upon conviction, to be punished as for a felony. At common law, the right to maintain an action for personal injuries died with the person. A leading object of the statute was to authorize the maintenance of such actions in cases where death had ensued from the wrongful act, neglect or default. The personal representatives of any deceased person, who could himself, if living, have maintained an action for personal injuries, may bring and maintain a suit for the exclusive benefit of the widow and next of kin of the deceased. The statute does not, as has been supposed by some, only create a liability in those cases where the relations of the persons to be indemnified to the person killed were such that the former had a. legal right to some pecuniary benefit which would result from a continuance of the life of the latter, and which was lost by the death. It is applicable to the case of any person, where death ensues, who could himself, if living, have maintained the action, and cannot justly be limited to the cases of a wife for the loss of a husband or children of parents. Nor, as it has been sometimes claimed, is it to be restricted to cases where there are both a widow and next of kin to be the distributees of the recovery. The words “widow and next of kin” are evidently used for the two-fold purpose of designating the persons entitled to a participation in the recovery, and those with reference to whose pecuniary loss by the death in question the damages are to be assessed. The terms “widow” and “wife” are used to designate a person who would not be included in the term “next of kin.” Were this otherwise, in the case of a father leaving children but no wife, an action could not be maintained upon the statute; for a conjunctive reading of the words would require that there should be both a “widow” and “next of kin” at the time the action was brought. This was not the intention of the legislature. Such intention manifestly was to impose on corporations and others more care in regard to human life; and, that they might not escape the consequences of their wrongful acts by the death of the person injured, to prevent the action dying with such injured person. Had death not ensued in this case, and the action had been brought by the child, it would not be pretended that to have entitled her to recover it was necessary to prove an actual pecuniary loss. A verdict for such damages as the jury might award would be sustained by evidence of the injury and the defendants’ negligence. The principle of liability, it has been seen, is made the same by the statute as though the injured party had survived and brought the action herself. It is not required, therefore, to sustain the action, that there should be proof of actual pecuniary loss. Any difficulty or confusion on the question of damages arises from a power conferred on the jury. In every action brought by the personal representatives of the deceased, it is provided that “ the jury may give such damages as they shall deem a fair and just compensation, not exceeding five thousand dollars, with reference to the pecuniary injuries resulting from such death to the wife and next of kin of the deceased person.” (§ 2.) I neither suppose that the limitation of $5000, imposed by this clause, shows that the jury were to be the uncontrolled judges of the pecu niary injury to that extent, nor that to sustain the action, even for nominal damages, it is essential that there should be affirmative proof of actual pecuniary loss The damages are to be assessed by the jury with reference to the pecuniary injuries sustained by the next of kin in consequence of such death. This is not the actual present loss which the death produces, and which could be proven, but prospective losses also. Should the action be brought to compensate a wife for the killing of her husband, would it be pretended that a recovery could only be had for the actual outlays occasioned by the death? or might the jury, having before them the relationship and dependent condition of the parties, the ability of the husband to maintain the wife, and other facts of a like kind, estimate the pecuniary loss of the wife under such circumstances ? )l think the jury are not limited to the assessment of damages for the actual present loss that may be proved, but they may go further, and compensate for the relativeñnjury with reference to the future. They may compensate for “ pecuniary injuries,” present and prospective. If this were not so, how would the widow and next of kin be indemnified in the case of' a person killed leaving property sufficient to cover all the outlay consequent upon his death ? A construction which should exclude damages for prospective losses, and confine them to such actual pecuniary loss as was proved, would render the law nugatory. It would be worthless to secure greater caution, and compel compensation for death occasioned by negligence. What I think the legislature intended was, that the jury who had all the circumstances of the casualty, and the precise condition and relationship of the parties before them, should give such a compensation as they should deem fair and just, keeping in view that it was to be measured by the injury done to the next of kin. They were not to compensate for the pain and suffering endured by the deceased, or the anguish and mental distress of a wife or children, incident to the loss of a husband or father, but were to measure the compensation by the pecuniary injury exclusively, the statute assuming/that every person possesses some relative .value to others. The judge instructed the jury that, under the statute, the next of kin might recover for the pecuniary injury resulting from the death. He then remarked that, in case of a husband or a father, the statute contemplated that ample compensation should be made for the pecuniary loss sustained; but that this was not such a case. That it was the loss of a child; and the plaintiff, as the representative of the next of kin, recovers whatever pecuniary loss the next of kin (the mother) may be supposed to incur in consequence of the loss of the child. In the words of the statute, they were to give what they should deem fair and just with reference to the pecuniary injury resulting from the death. \The judge further instructed the jury that they could not give damages for the physical suffering of the child, or the anguish of mind inflicted upon the parent by such a calamity; that the measure of compensation was strictly pecuniary, to indemnify fully for any pecuniary loss that may have attended or resulted from the death of the child. | All that was claimed on the argument to be erroneous was, that whilst the judge instructed the jury in the words of the statute, he observed that, in a case of this kind, the plaintiff might recover whatever pecuniary loss the mother may be supposed to have incurred in consequence of the child’s death. But this was not error. It was only another way of instructing the jury that the damages were to be a sum which, in their opinion, taking into view all the circumstances of the case, would be the pecuniary loss of the next of kin. ^Tliis was right, unless the statute expressly limits the recovery to the actual pecuniary loss proved on the trial. We think it does noL It may be that, under the whole proof, of negligence of the parties was incorrectly determined by the jury, and their assessment of damages excessive. But these are matters not reviewable by this court on appeal. The judgment should be affirmed. Comstock, J. When the plaintiff rested at the trial, the defendants’ counsel moved to dismiss the complaint on the grounds: First. That the accident was occasioned by the negligence of the child; Second. That there was no proof of any pecuniary or special injury sustained by the plaintiff or next of kin, in consequence of the death of the child. On examining the evidence upon the question of negligence I am satisfied that it was proper for the consideration of the jury, and tne charge in that respect has not been complained of. As to the other ground of the motion, it is sufficient answer that without any special proof of pecuniary loss, nominal damages, at least, could be recovered. The statute, in terms, gives the action to the representative in all cases where the person injured would be entitled to sue if death had not ensued. (Laws of 1847, 575.) In this case, if the child had been only wounded instead of killed, the action to recover the expenses incurred in its cure and for the loss of service could have been maintained only by the parent or person entitled to the service. But the child could also sue for the personal wrong to itself, and could recover, at least, a nominal compensation. Whether more than that, or what amount could be recovered, would depend on circumstances in regard to which it is unnecessary to speculate. It is enough that the action would lie, for that brings the present suit within the very terms of the statute. In the course of the trial, evidence was received to show that there were no guards in front of the wheels of the defendants’ car. The complaint alleges that the car was driven over the child carelessly and negligently by the defendants’ servant, and it says nothing about the guards; and on this ground it was insisted that the evidence should not be admitted. On this point I concur in the observations of Mr. Justice Woodruff, in the court below, who thought the evidence admissible on the ground that what would be prudent and careful in the management of a well constructed car, provided with brakes and guards to prevent injury in case of accident, might be imprudent and careless in driving a car not thus provided. It is hardly probable that this evidence had any influence upon the result of the trial; but I cannot say it was so remote from the question of the negligent driving and management of the car, that it ought not to have been received. The judge, in charging the jury, laid down a series of propositions on the subject of damages, and the defendants’ counsel put in a single exception to “ all that part of the charge.” On the argument before us, one and only one expression of the judge has been selected" and claimed to be erroneous. The general tenor of the charge is admitted to have been correct, as it clearly was, and when such is the case, it is well settled that an exception to the whole in gross raises no question upon a particular paragraph. I think the expression referred to was loose and inaccurate; but it was the duty of the defendant, instead of putting in a general exception to a charge correct in all its essential features, to call the attention of the judge to the particular part supposed to be erroneous. Had that been done I have no doubt there would have been nothing to complain of. The remaining points of the appellants’ counsel, that the damages were excessive, and that the verdict was against evidence and against the law of the case" as laid down at the trial, were properly addressed to the supreme court, which could reverse the judgment and grant a new trial on those grounds. But this court has no such power. Where a trial and general verdict have been had, we can deal only with questions of law upon exceptions duly taken, and we cannot correct the errors of the jury. The judgment should be affirmed. All the judges concurring, Judgment affirmed.