
    Carmelo Sciurba, as Administrator, etc., of Antonino Sciurba, Deceased, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Negligence — death of a boy, running across a street, run over by a street car — charge of the court as to negligence, contributory negligence and the measure of damages.
    
    In an action to recover damages resulting from the death of the plaintiff’s intestate, a hoy seven or eight years of age, who, while crossing the defendant’s street car tracks, at a point in the middle of a block, was run over and killed by one of the defendant’s street cars, it is error for the court to charge, “that if the jury believe the story of the plaintiff’s witness that the motorman while some distance from the boy had his face turned away from the front of the car, in view of the surrounding circumstances and the time and place, it is for the jury to say whether or not this act prevented him from seeing this child in time to avoid the accident, and if this act did prevent him from avoiding the accident, then the motorman was negligent and the defendant is liable,” as, even if the jury would have been warranted in finding that the action of the motorman constituted negligence which would render the defendant liable, it did not constitute negligence as matter of law.
    It is also error for the court to charge, “ even if contributory negligence is assumed, the question remains whether defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the injured party’s negligence,” where such proposition has no application to the facts proved in the present case.
    The plaintiff is not entitled to have the jury charged, “If the jury find that the plaintiff is entitled to a verdict, a verdict for more than nominal damages must be given,” as the measure of damages is the pecuniary loss sustained by the next of kin and, under the statute, it is for the jury to determine whether or not they sustained any pecuniary loss.
    Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of December, 1901, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 18th day of December, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    . Cha/i'les F. Brown, for the appellant.
    
      Charles Q. F. Wahle, for the respondent.
   O’Brien, J.:

In this action it is sought to recover damages for the alleged negligence of the defendant in causing the death of plaintiff’s son, who was run over by one of its south-bound Amsterdam avenue oars just north of One Hundred and Twenty-ninth street on March 12, 1901. At noon on that day, the boy, who was between seven and eight years of age, came out of the schoolhouse on the northwest corner of Amsterdam avenue and One Hundred and Twenty-ninth street and started south, but after he had gone about twenty feet, went to the curb and then ran in a southeasterly direction across the avenue. In crossing the track, which is about eight or ten feet from the curb, he was struck by the car which ran over him. Whether in crossing his toe was caught in the slot and he fell, as testified by one of the witnesses, or whether the car knocked liim down before he could get across, as testified by others, was one of the questions in the case. The defendant’s negligence was, in the main, predicated upon the evidence that the motorman at a time when a great number of children were coming from the schoolhouse onto the avenue and one of them at least, the plaintiff’s son, was desirous of crossing, approached that part of the avenue at a very rapid rate of speed and failed to avert the accident because of his inattention to his surroundings, and, by looking sideways, was prevented from seeing the boy in time to stop the car.

It is unnecessary to dwell further on the extent of the evidence presented as bearing upon the questions of the negligence of the defendant and the contributory negligence of the boy or his parents, because there must be a new trial for errors committed in the charge to the jury.

We have endeavored to point out on several occasions the dangerous practice of counsel for a plaintiff, who in his zeal for his client’s interest, not being content to rely upon the main charge of the court to the jury, although in all respects it is full and fair, then presents numberless requests which, however good they may be as abstract propositions of law, are not directly applicable to the facts of the case upon trial; and the danger of this is emphasized when, in addition to the propositions themselves being abstract, they are couched in language taken from opinions written by judges in the appellate courts who are discussing the facts of particular cases no longer in their original form as supporting or destroying the inference of negligence, but' are speaking of them as they have been resolved by the verdict of a jury. Thus testimony adduced upon a trial that a motorman had his attention diverted from in front of his car, or that in approaching a crossing where passengers or vehicles might be the motorman did not have his car under control so as to avert accidents, are circumstances which in particular cases with other facts have been presented to juries from which they were to determine whether or not the conduct ascribed to the motorman was or was not negligent. In reviewing such cases upon appeal it is natural to speak of these things from which the jury have inferred negligence as negligent in themselves. Such a characterization of the facts as negligent would be entirely improper in submitting the case to the jury, because it is for them to determine from the situation and circumstances of the particular accident whether the defendant was or was not negligent. Were it otherwise the court might as well direct a verdict or dismiss the case, because, for the court to say in charging the jury that any particular act or course of conduct was negligent would be removing from the jury the very subject-matter which they were called upon to determine.

A striking illustration of the dangerous practice of plaintiff’s submitting numerous requests as emphasized by taking words from opinions of judges in the appellate courts, severed and disconnected from their context and attempting to have them applied to another and different concrete case, is here well illustrated, resulting as it must in the reversal of this judgment.

Thus the eighth request was, that if the jury believe the story of the plaintiff’s witness that the motorman while some distance from the boy, had his face turned away from the front of the car, in view of the surrounding circumstances and the time and place? it is for the jury to say whether or not this act prevented him from seeing this child in time to avoid the accident, and if this act did prevent him from avoiding the accident, then the motorman was negligent and the defendant is liable.” It should be remembered that this accident happened within the block between the street crossings; but apart from the questions as to whether the act of the motorman in turning away his face from the front of the car was evidence of negligence or not (upon which see De loia v. Met. St. Ry. Co., 37 App. Div. 455; affd;, 165 N. Y.' 664), it was clearly error for the court to charge, as it did, at plaintiff’s request, that if this prevented him from seeing the boy, it was, as matter of law, negligence, rendering the defendant liable.

The third request presented by the plaintiff and charged by the court was, “ even if contributory negligence is assumed, the question remains whether defendant might by the exercise of reasonable care and prudence, have avoided the consequences of the injured party’s negligence.” However good as an abstract proposition, this request had no application to the facts as proved; and with respect to it we can but repeat what was said in Csatlos v. Met. St. Ry. Co. (70 App. Div. 606), that what the counsel had in mind * * * were cases like Weitzman v. Nassau Elec. R. R. Co. (33 App. Div. 585) ; Green v. Met. St. Ry. Co. (42 id. 160); * * *. In the case at bar, however, there were presented the ordinary questions of negligence and contributory negligence, and there was no suggestion either in the pleadings or in the testimony of any new situation being created after the plaintiff had come into a position of danger.” So in this case, the presence of the boy on the track and his being struck producing the injuries for which recovery is sought gave no opportunity for the creation of a new situation after he was in a position of danger; and the request, therefore, was entirely inapplicable and its tendency was to introduce confusion into the issues and into the deliberations of the jury.

Without going through all, there is one additional request charged by the court, to which we will refer, namely, the twelfth, that “ If the jury find that the plaintiff is entitled to a verdict, a verdict for more than nominal damages must be given.” The vice in this request is apparent when we consider the rule to be applied upon the subject. In this class of cases brought by an administrator the measure of damages is the pecuniary loss (Code Civ. Proc. § 1904), and under the statute it is for the jury to determine, as matter of fact, the extent, if any, of this pecuniary loss. As correctly urged by the appellant, In the absence of all proof of earning capacity or of any probability of the decedent’s life being of pecuniary value, the jury are not required, as a matter of law, to award substantial damages. The plaintiff was entitled to have the jury instructed as to the various elements entering into the determination of the pecuniary loss sustained by the next of kin, but was not entitled to have the jury instructed that as a matter of law, irrespective of whether they found the plaintiff had sustained pecuniary loss, that they must bring in a verdict in favor of the plaintiff for substantial damages.”

For the errors, therefore, in the court’s charging certain requests of the plaintiff, to three of which we have referred, the judgment and order must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Ingraham, McLaughlin, Hatch and Laughlin, JJ., concurred.

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