Hall v. Socony-Vacuum Oil Co.

Defendants have appealed from a judgment rendered at the Warren County Trial Term of the Supreme Court in plaintiff’s favor in the sum of $10,840.27 and from an order denying their motion for a new trial. The action was in negligence and was brought to recover for the death of plaintiff’s intestate, a child eight years of age, and for conscious pain and suffering. The amount claimed in the complaint by reason of the wrongful, death was $10,000. The case was submitted to the jury by the trial court solely upon the theory of damages by reason of the wrongful death, there being no proof of any conscious pain or suffering on the part of decedent, and consequently the failure to dismiss that cause of action was not prejudicial. There were no exceptions to the court’s charge in that respect and no request for any further instructions on the question of damages. We find nothing prejudicial in - counsel’s remarks in summation. The jury rendered a verdict in favor of plaintiff for the sum of $12,000 and in addition thereto the sum of $162 for funeral expenses. The trial judge reduced the verdict to the sum of $10,000 on the cause of action for wrongful death. The accident happened on December 24, 1945. Plaintiff was driving a truck southerly on Route 28, a highway twenty-two feet in width consisting of two separate strips of eleven feet each. Plaintiff drove his truck entirely off the road on the westerly side in front of his garage and parked the same. Plaintiff’s home was located on the easterly side of the highway and *927about thirty feet off the road. After plaintiff stopped his truck the decedent opened the door of the cab, crossed the highway and entered upon her own property and was at least fifteen feet off the highway. Defendant’s truck was also proceeding southerly in the rear of plaintiff’s truck. The driver turned to his left, crossed the highway, entered upon plaintiff’s property and struck the infant as a result of which she lost her life. The evidence as to the negligence of defendant driver is overwhelming. On his own admission he had plenty of room to pass on his own side of the road and no occasion warranted his making a left turn. The evidence sustains the finding of the jury. Judgment and order unanimously affirmed, with costs. Present — Hill, P. J., Heffeman, Brewster, Russell and Deyo, JJ. [See post, p. 1042.] Mary M. Caloro, Individually and as Guardian ad Litem of Donald Caloro, Respondents, v. Hereford Smith, Appellant. Mary M. Caloro, as Administratrix of the Estate of Cosmos Caloro, Deceased, Appellant, v. Hereford Smith,