
    Seiser Friedman, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    (Supreme Court, Appellate Term,
    January, 1907.)
    Carriers — Carriage of passengers — Liability for personal injuries to passengers —Actions by passengers — Instructions —As to damages.
    Where, in an action against a street railway company by a passenger to recover for personal injuries, it appeared that plaintiff was unable to attend to his grocery store for several weeks in consequence of his injuries and was obliged to hire a boy to assist his .wife in running the business and to pay him five dollars a week, it was error to instruct the jury that if they found for the plaintiff he would be entitled to recover “ the amount lost that, but for the accident he would have made; that is, the amount of his earnings; that is, the amount that would be paid to a person doing such work as he did for others,” about fifteen dollars per week, as the proof would not sustain in support of that particular element of damages a greater sum than five dollars per week.
    Appeal by the defendant from a judgment of the Municipal Court of the city of New York, fifth district, borough of Manhattan, rendered in favor of the plaintiff.
    George H. Yeoman, for appellant.
    Herman Gottlieb, for respondent.
   Gildersleeve, J.

The plaintiff was injured while attempting to board one of defendant’s cars, and the jury rendered a verdict in his favor for $280. The judgment, together with the costs, from which defendant appeals, amounts to $906.50. The learned justice who presided at the trial submitted the question of negligence to the jury with very clear, full and proper instructions of law applicable thereto. On the question of damage, however, we think he committed error that was prejudicial to defendant and necessitates a modification of the judgment. The plaintiff, at the time of the accident, had a small grocery store, in the conduct of which he was assisted by his wife. The evidence shows that, for a period of four weeks after the accident, he was unable to attend to his business and that, during this period, the business was run by his wife, assisted by a boy to whom was paid the sum of five dollars a week and his board. On this branch of the case the learned trial justice stated to the jury that if they found for plaintiff he would be entitled to recover the amount lost that, but for the accident he would have made; that is, the amount of his earnings; that is, the amount that would be paid to a person doing such work as he did for others. He says it is about $15 per week.” To this instruction defendant duly excepted. Plaintiff had been allowed to testify that fifteen dollars a week was the amount usually paid for doing the work he did. The plaintiff, however, further testified that, as a matter of fact, he only paid the boy during his own absence from the store five dollars a week and board. There was no evidence as to what it cost to board the boy, and the jury could not be allowed to speculate e- its value. It will be seen, therefore, that the proof will not sustain in support of this particular element of damages a greater sum than five dollars a week.

It follows that the judgment must be modified by reducing the same to the sum of $266.50, and, as thus modified, affirmed, without costs to either party.

Blanchard and Dayton, JJ., concur.

Judgment modified, and, as modified, affirmed, without costs to either party.  