
    John Coghlan, as Administrator, etc., of Margaret Coghlan, Deceased, Respondent, v. The Third Avenue Railroad Company, Appellant.
    
      JSrroneous change as to the earnings of an infant — not cured by a further change as to her duty to support .her father and her peauniaa’y value to her next of kin-,— contributory negligence—a parent releasing in.a public'street the hand of a child two yea/rs old in order to talk.to a friend is not guilty-of contributory negligence.
    
    ■In an action brought, to recover damages resulting from the death of the plaintiff’s intestate, caused by the alleged negligence of the defendant, it appeared that the plaintiff took two of his children, one aged, four years, and the other aged two years and two months, for a walk; that he walked up and down the sidewalk for a few minutes- holding'the younger child by the hand, but that upon meeting an acquaintance lie let go of the child’s hand, and soon after,, hearing a shout, saw her in front of a car of the defendant, which was going up a steep grade. The. child was then about eight feet in front of the ear, which, after running over her, proceeded about sixty or seventy feet before it was stopped. There Was evidence that the child', who was dressed in bright colors, was in front of the car for a long enough time to have been seen by the brakeman if he had not been.looking in another direction.
    Upon the trial of .the action the court,, at,'the.request of the defendant, charged . the jury that there could be no recovery whatever for the loss of the child’s earnings while an infant; that'such earnings might be the subject of .an independent action brought by the father of the child. Subsequently, at the request of the plaintiff, the court charged the' jury that they need not, in esti mating -the compensation to be made for the death of the-child, confine their consideration to her minority; that in certain' contingencies she might, after her majority, owe her father the duty of -support, and that she might, after that event, in many ways be of great pecuniary advantage to him; and that in estimating the pecuniary value of this child to her next of kin the jury could take into consideration all the probable, or even possible, benefits which might result to them from her life.
    
      Held, that the charge was erroneous, in so far as it stated explicitly that there could be no recovery for the loss of earnings during infancy, and that the error was not cured by the further charge, inasmuch as such further charge was not. inconsistent with the charge that preceded it;
    That it could not be said, as matter of law, that the father of the child was guilty of negligence, which must be attributed to it, because he had released her hand for a short time while he was engaged in talking to a friend;
    That the question of the defendant’s negligence was properly submitted to the jury.
    Appeal by the defendant, The Third Avenue Railroad Company,, from an order of the Supreme Court, made at a Trial Term thereof,, and entered in the office of the clerk of the county of New York on the 19th day of February, 1896, setting aside the verdict of a jury rendered in the action and granting a new trial.
    
      William N. Cohen and Eugene Treadwell, for the appellant.
    
      George S. Daniels, for the respondent.
   Van Brunt, P. J.:

This action was brought by the plaintiff, as administrator, to' recover damages for the death of his infant daughter alleged to have been caused by the defendant’s negligence. The action was tried and a verdict in favor of the plaintiff for six cents damages, was rendered by the jury. Thereupon a motion was made upon the minutes for a new trial, which motion was granted upon the ground of an error in the charge to the jury.

It is conceded upon the part of the appellant that that portion of. the charge upon which the order for a new trial was founded was erroneous. . But it is claimed that the - subsequent portions of the charge cured the error which had been committed. At the request of the defendant the court charged the jury that there could be no' recovery whatever in the action for any loss of earnings which the child might have made while she was an infant and until she had reached the age of twenty-one years; and that such earnings might be the subject of a recovery in a separate action brought by the father of the child. Subsequently, at the request of the plaintiff, the court charged that the jury were not bound in estimating the compensation to be made for the death of the child to confine their conaider- , ation to her minority; that in certain contingencies she might after her majority owe her father the duty of support which could by legal proceedings be enforced; and that after that event she might in many ways be of great' pecuniary benefit to- him •; and that in estimating the pecuniary value of this child to her next of kin, the jury could take into consideration all the probable or even possible benefits which might result to them from her life.

It is claimed upon the- part, of the-appellant that this latter charge cured the error contained in the request of the defense which was charged as above stated. An examination of these two requests does not by any means show that they are inconsistent, the one with the ofher. The court charged explicitly that there could be no recovery whatever for any loss of earnings while the child was an infant and until it reached the age of twenty-one years; and then at the request of the plaintiff charged that the jury were not confined to the period of minority, but that they might find pecuniary-damages accruing after majority. These two requests were entirely consistent with each other, and the jury might very well have understood that they could not give damages for loss of earnings during minority, but that they were restricted to pecuniary damages accruing after majority.

It is claimed upon the part of the appellant that this order was wrong because the complaint should have been dismissed upon the motion of the defendant. The evidence shows that the, plaintiff was a policeman and lived at Ho: 1435 Amsterdam avenue on the southeast corner of One Hundred and Thirty-first street in the city of Hew York; that on the 2d of May, 1895,. at about a quarter past eleven in the forenoon he took two of his children from his apartments to the street for a walk, the younger, the deceased child, being about two years and two months old, and the elder about four years old. The plaintiff walked up and down on the sidewalk about five or ten minutes and was returning to go up stairs to his apartments when as he came to the corner of the street, holding the deceased by the hand, he met an acquaintance named Malloy and stopped to. talk with him a minute or two. He let go of his children’s hands, and they were playing about his feet, when the deceased wandered away, and the father, hearing a shout, turned around quickly and saw the deceased in front of the defendant’s car which was going up the hill on Amsterdam avenue. The child appears to have been south of the south crossing of the street and avenue and when first seen was about eight feet in front of the car. She was struck by the car, which proceeded sixty or seventy feet before it was stopped. It is alleged upon the part of the defendant that the brakeman applied the brake as soon as possible and sprained his arm in his efforts to stop the car. There was a steep grade and the car was going up hill; and yet this brakeman was unable to stop it before it went sixty or seventy feet. This of itself was evidence tending to show that there was no well-directed effort made by the brakeman to stop the car. It further appears that the child was dressed in bright colors, and there is evidence that she was seen in front of the car long enough to have enabled the brakeman to have stopped it before it struck her, but that he was looking in another direction, apparently not paying the slightest attention to any obstructions which might he upon the track.

It is claimed that the father was guilty of negligence contributing to the accident because of his letting go her hand and allowing her to play in the street as she did. We do not think as matter of law, in view of the various decisions upon this question, that the point is well taken. The father had released the hand of the child only for a short period of time while talking .to his friend, and the next thing he knew she was in front of the car and about being run over. It cannot be held as a matter of law that a person who is in the street with a child of immature years Is bound every instant of the time to have his hands actually upon the child restraining its movements. This would be exacting a degree of diligence which as matter of law this court cannot impose. It certainly was a question for the jury to determine as to whether under such circumstances the parent was guilty of contributory negligence in the care and custody of his child.

The order should be affirmed, with costs.

Williams, Patterson, O’Brien and Ingraham, JJ., concurred.

Order affirmed, with costs.  