Gorham v. New York Central & Hudson River Railroad

"We understand from the case that the court directed a verdict for nominal damages of six cents because no direct proof was given *451as to the pecuniary loss sustained by the death of the intestate. The court’s attention was directed to the opinion of Bocees, J., in Mitchell v. The N. Y. Central (2 Hun, 535). That case was affirmed by the Court of Appeals, and it is reported as a memorandum case in 64 N. Y., 655. We have been furnished with the whole opinion of Earl, J., delivered in that case, and find the question here involved was not discussed or alluded to by him. But the point was determined by that court in Ihl v. Forty-second Street Railroad (47 N. Y., 317). It was there held in an action to recover damages for the death of a child three years old, under the provision of chapter 450, Laws of 1847, as amended by chapter 256 of Laws of 1849, that the absence of proof of special pecuniary damage resulting from the death of the child will not justify the court in nonsuiting the plaintiff, or in directing the jury to find only nominal damages. (See opinion Rappalo, J.)

The ruling in this case was therefore clearly erroneous. Notwithstanding the error we have pointed out, the learned counsel for the respondent insists that the judgment should be affirmed, as the plaintiff recovered more than he was entitled to, and this position would be correct if we were of the opinion that the plaintiff was not entitled to recover any damages. (John Gray v. The Second Avenue Railroad Company, 65 N. Y., 561.) We cannot say, as a matter of law, that it was negligent in the parents of the intestate to allow the deceased to go to school across the railroad in company with his brother about ten years of age. Nor can we say, as a matter of law, that the deceased was guilty of such contributory negligence as would bar a recovery. (Ihl v. Forty-second Street Railroad Company, supra; Costello v. The Syracuse and Binghamton Company, 65 Barb., 92.)

Those questions should have been submitted to the jury with the question relating to the defendant’s alleged negligence. (Kenyon v. The N. Y. Central, etc., 5 Hun, 480; Zimmer v. The N. Y. Central R. R. Co., 7 id., 552; McGovern v. The N. Y. Central etc., Railroad Company, 67 N. Y., 417; Powell v. The New York Central and Hudson River Railroad Co., opinion of Gilbert, J., 10 Weekly Dig., 505; S. C., 22 Hun, 56.)

We must, for the error pointed out (supra), reverse the judgment and order, and direct a new trial.

*452The judgment and order should be reversed and a new trial ordered, with costs to abide the event.

Judgment and order reversed and new trial ordered, costs to abide the event.