
    COURT OF APPEALS.
    William Tilley, administrator of Angeline Tilley, dec’d, respondent agt. The Hudson River Railroad Company, appellants.
    In an action under the statutes for damages for injuries in causing death, brought by the husband of his deceased intestate wife, the jury, in estimating the damages, cannot take into consideration the expectancy of the children of the deceased in th & fruits of the earnings of the mother in a profitable business which she carried on at the time of her death. The children could only realize such earnings as next of kin of their father, who would be legally entitled to them.
    The plaintiff on the trial may, however, show the habitual occupation and employment of the deceased, for the purpose of showing her general capacity and relation to her family. The extent to which such an examination should be -carried is in the discretion of the judge at the trial.
    The injury to the children of the deceased by the death of their mother, is a legitimate ground of damages, and it is not confined to merely nominal damages.
    The word “pecuniary” in the statutes is not used in a sense so limited as to confine it to the immediate loss of money or property. The injury arising to infant children from the loss of their mother, who owes them a duty of nurture, and of intellectual, moral and physical training, and of such instruction as can only proceed from a mother, is not pecuniary in a very strict sense of the word; hut it belongs to that class of wrongs as distinguished from injuries to the feelings and sentiments, and therefore falls within the term (pecuniary) as used in the statutes.
    
      June Term, 1862.
    This is an appeal by the defendants from a determination made at a general term, by the supreme court, in a judgment entered on the verdict of a jury, in favor of the plaintiff. The action was commenced in that court, and was tried before Judge Peckham, at the Rensselaer circuit, in June, 1861. Exceptions were taken by the defendants to the admission of evidence, to the refusal to direct a verdict for nominal damages, and to the charge. Judge Peck-ham, at the trial, directed the exceptions to be heard in the first instance, at the general term, and judgment in the meantime to be suspended. Upon the hearing of the exceptions, the general term refused to grant a new trial. No opinion was delivered. The plaintiff thereupon entered judgment upon the verdict, which is the judgment appealed from. A motion for a new trial, on the ground that the damages awarded were excessive, was made on the minutes of the judge who tried the cause, and denied. An appeal was taken from his decision, and argued and decided at the same time with the motion for a new trial on the exceptions.
    
      Statement of facts claimed by the respondent to have been proved.
    
    1. That the plaintiff is the administrator of Angeline Tilley, deceased, who at the time of her death was his wife.
    2. That the defendants are a corporation created under the laws of the state of New York, and are carriers of freight and passengers from the city of Troy to the city of New York, by cars on their railroad.
    3. That on the 18th of January, I860, plaintiff’s said wife, for a compensation paid, became a passenger in a car upon the defendants’ railroad, run by them.
    4. That defendants undertook and agreed to convey the plaintiff's wife on their railroad as such passenger, with due care and skill to New York.
    5. That on the 18th January, 1860, and at or near Sing Sing, by “ gross carelessness, negligence and unskilfulness of the agents and servants of the defendants, a collision occurred upon said railroad of the defendants, in and by which a locomotive or engine of the defendants attached to a train of cars, also run by the defendants, ran into the rear train of cars of the defendants standing upon said railroad, in which the said Angeline then was as such passenger, and she was thereby bruised, wounded and injured, sd that in consequence of such bruises, wounds and injury, so as aforesaid received by the said Angeline, she remained and continued in great pain and suffering for about seven days, and then died of such wounds and injuries.”
    6. That the death of the plaintiff’s wife was occasioned by the carelessness, &e. of the agents and servants of the defendants, and without any fault of the said wife of the plaintiff.
    All the above facts are alleged in the complaint, and not being denied by the answer, they are, according to the rules of pleading under the Code, admitted.
    ■7. It was further proved on the trial, that the plaintiff and his wife were residents of the town of Grafton, Rensselaer county, and at the time of her death had a family consisting of their five children residing with them, and then of the ages respectively as follows: Elizabeth Ann, married to a Mr. Burdick, aged 22 years ; Hannah, aged 20 years; James L., aged 16 years; Charles, aged 10 years; and Laura, aged 8 years.
    8. That plaintiff was a carpenter, and carried on this business at various places away from his home.
    9. That the plaintiff’s wife attended to her family duties, superintended the household affairs, nursed her children, made their clothing, educated them, and instructed the daughters in domestic affairs.
    10. That in addition to the care of her domestic affairs and of her family, she carried on the shirt and bosom making business.
    11. That the business of making shirts and bosoms was conducted by her personally, she going to New York, making the contracts with houses there in that line of business, and receiving from them the materials to be made up. That she employed in making up these materials, fifteen or more sewing machines. That she kept books of account, and made most of the entries in them ; packed up the goods ; went to New York at times herself, with the packages, usually furnishing from seventy to eighty dozen of shirts per month, besides bosoms. And that at the time of her death, she had been thus engaged in this business eighteen months.
    12. That at the time of her death she was forty-eight years old, and her husband fifty-one.
    
      13. That at the time of her death she had no organic disease, except a goitre on the neck, and that not of a malignant character, nor such as would necessarily shorten her life.
    14. That after recovering from a sickness which she had some six or seven months previous to her death, she. attended to her business as usual, and her health was good.
    15. That on 26th January, 1860—eight days after the collision by which the deceased ivas fatally injured, and thirty hours after, her death—a post mortem examination of her body was made in New York, at the request of the superintendents of the railroad.
    16. That the post mortem examination was made by Dr. Beach, of New York, in the presence of Drs. Winter and Ranney of the same place.
    17. That with the exception of “ a small bony deposit in the right lung,” and “ the adhesion, to a slight extent, of the liver to the abdominal walls,” “ the other organs of the whole body were healthy.” That she had recovered from the causes which had produced the bony deposit in the lung, and the slight adhesion of the liver to the diaphragm was of long standing, and caused no injury to her constitution, would not, probably, shorten her life, and did not impair her ability to labor.
    18. That her death was caused “ partly from the shock and partly from the blow received upon the abdomen,” which were caused by the collision upon the defendants’ railroad. And her death was not to any extent attributable to any weakness, defect or disease.
    The jury found a verdict for the plaintiff for $4,000.
    Thomas M. North, for defendants and appellants.
    
    David L. Seymour, for plaintiff and respondent.
    
   Denio, J.

One ground of estimating the damages which the jury were instructed to take into consideration, was the expectancy of the children of the deceased in the fruits of her earnings in the business of making shirts in which she was engaged. It was conceded. that these earnings, immediately upon being realized, became the property of her husband, and that the only way in which the children could be benefited by them, would be by succeeding to them as the next of kin of their father, in the event of his continuing to own them, of their surviving him, and of his dying intestate. It seems to me that this is too remote, and that it is not within the meaning of the statute. If the children should have become the possessors of these anticipated earnings, it would not be as the next of kin of their mother, but on account of their sustaining that relation toward their father. The gravamen of the claim in that aspect is, that by the wrongful acts of the defendants they have been cut off from the succession to wealth which, but for the untimely death of their mother, occasioned by that act, she would or might have earned. But this injury does not happen to them as her next of kin. In that character it would be unimportant to them, whether their mother continued to realize earnings or not, for all such earnings would immediately vest in the plaintiff as husband, and could never come to them as her next of kin.

The construction of this statute, it must be admitted, involves great difficulties, and the grounds and measure of damages cannot always be determined by the application of the ordinary rules of the common law. If the deceased in this case had been a widow, and had been engaged in a profitable business, rendering it probable that if her existence should be prolonged to the average period of life, she would acquire wealth, I am not prepared to deny but that her death by the wrongful act of another would entitle her children to damages under the provisions of this act, on account of being thus deprived of the probable succession ; for though the cause and the effect would be too remote from each other to found a claim to damages by the rules of the common law, such a ground of damages may have been within the contemplation of the legislature in passing the statute. Next of kin are embraced in its language as parties who may be pecuniarily injured by the death of a person to whom they stand in that relation, and it is not required that the degree of kindred should be such as to create the duty of sustenance, support or education. It is well settled that the survivorship of a wife is not essential to the maintenance of the action. (Oldfield agt. The N. Y. & Harlem R. R. Co., 14 N. Y. R., 310; Quinn agt. More, 15 id., 434.) Suppose the only kindred to be collateral, between whom and the deceased there was not legally or conventionally any connection which would impose such duties upon him, yet by the terms of the act, damages in such a case must still be measured by the pecuniary injury resulting to such next of kin. As regards the existing property of the deceased, they would not be pecuniarily injured by his death ; but if he left no will, they would be immediately benefited by the amount of the property he then possessed. The only loss such parties could sustain would be of the further accumulations which it may be supposed he would have, if he had continued to live, and which might, at his more remote decease, have devolved upon them. This is sufficiently vague and uncertain as a ground of damages, and could not be allowed except on account of the peculiar provisions of the statute, and the impossibility of giving it effect in certain cases except under such a construction. But the rule laid down at the trial allowed damages to be given upon quite a different ground, involving another series of contingencies. At the death of the victim of the defendants’ negligence, the next of kin of the deceased are definitely determined and are capable of immediate ascertainment ; but it would be here quite impossible to determine who will be the next of kin of the husband, and entitled to succeed to his estate when, at some more distant and uncertain period, he comes to die. These who now are presumptively such, may or may not then be alive, or if alive, their number may be increased by the birth of others, or another sharer in his estate may arise in the person of a second wife. The rule of damages laid down would, in my judgment, be far too speculative and uncertain for actual application.

It will not be essential to pass upon the other exceptions, except so far as may be useful for the purpose of another trial. We think it was not improper to allow the plaintiff to show the habitual occupation and employment of the deceased, for the purpose for which it was offered and received on the trial, namely, to show her general capacity and relation to her family. It is true, that the testimony on that point was made to assume proportions beyond what seem to have been necessary for the purposes mentioned ; but it being competent, it was for the judge to determine the extent to which the examination might be carried.

The injury to the children of the deceased, by the death of their mother, was a legitimate ground of damages ; and we do not agree with the defendants’ counsel, that they ought to have been nominal. The difficulty upon this point arises from the employment of the word “ pecuniary” in the statute; but it was not used in a sense so limited as to confine it to the immediate loss of money or property; for if that were so, there is scarcely a case where any amount of damages could be recovered. It looks to prospective advantages of a pecuniary nature which have been cut off by the premature death of a person from whom they would have proceeded; and the word “ pecuniary” was used in distinction to those injuries to the affections and sentiments which arise from the death of relatives, and which, though most painful and grievous to be borne, cannot be measured or recompensed by money. It excludes also those losses which result from the deprivation of the society and companionship of relations, which are equally incapable of being defined by any recognized measure or value, But infant children sustain a loss from the death of their parents, and especially of their mother, of a different kind. She owes them the duty of nurture, and of intellectual and moral and physical training, and of such instruction as can only proceed from a mother. This is, to say the least, as essential to their future well-being in a worldly point of view, and to their success in life, as the instruction in letters and other branches of elementary education which they receive at the hands of other teachers who are employed for a pecuniary compensation. Suppose a person under obligation to furnish a minor apprentice with common school instruction for a given period, would not the violation of that duty furnish a claim for damages ? The injury would be of the same character which a child suffers from the loss of the training and instruction which it is entitled to receive from its parents. The injury in these cases is not pecuniary in a very strict sense of the word, but it belongs to that class of wrongs as distinguished from injuries to the feelings and sentiments, and in my view, therefore, it falls within the term as used in the statute.

It is urged by the defendants’ counsel that there should be no recovery on these grounds, because the father is obliged to provide what the children have, been deprived of by the loss of their mother. But this is, not an adequate answer. The children have .been deprived, of that which they were entitled to receive, by the wrongful act of the defendants. Their loss may. or maynot.be made up to them from another source, but' in the meantime they are entitled to a fair and just compensation for the wrongdoing, by the provisions of this statute.

The judgment of the supreme court must be reversed, and a new trial ordered.

Davies, Sutherland, Allen and Gould concurred in the result—Gould, J., thinking, however, that only nominal damages were recoverable,  