
    Lucien Barnes, Resp’t, v. James R. Keene, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed February 12, 1892.)
    
    "Negligence—Damages.
    While a father is entitled.to recover the value of his services as a nurse to his child injured through the negligence of another, he is not entitled to recover what he might have made if he had not abandoned a business engagement.
    Appeal from a judgment of the general term of the superior •court of the city of Hew York, affirming a judgment entered upon ;a verdict and also affirming an order denying a motion for a new ■trial.
    Action by a father to recover the expenses incurred in nursing •■and treating his infant daughter who had been injured by the negligence of the defendant, and also to recover damages for the loss of her services.
    November 30, 1882, the plaintiff’s daughter, Mary, then aged eight years, was seriously injured by the negligence and inefficiency of a servant of the defendant. In an action brought by her through her guardian ad litem, she recovered a judgment against the defendant for the sum of $3,500, being the damages thus sustained by her, which was affirmed by this court. 115 N. Y., 638 ; 23 St. Rep., 995.
    The complaint of the father was set in the usual form, except that the recovery of said judgment was set forth in a paragraph by itself. The defendant denied the most of the allegations contained in the complaint and alleged that the accident resulting in said injuries was caused by the negligence of the said Mary. The jury rendered a verdict in favor of the plaintiff for $1,500.
    
      S. Hanford, for app’lt; Samuel H. Randall, for resp’t.
    
      
       Reversing 32 St. Rep., 1138.
    
   Vann, J.

Upon .the trial of this action the plaintiff read in evidence a stipulation of the attorneys for the defendant, admitting “ that through the negligence and carelessness of the person operating the defendant’s elevator, the plaintiff’s child, Mary T. Barnes, was injured and that the defendant is in law liable for such negligence of the operator.” The only issue left undisposed of by this stipulation related to the amount of damages that the plaintiff was entitled to recover. Those damages were in the nature of compensation for pecuniary loss and included the value of his daughter’s services as well as the reasonable expenses necessarily incurred by him in the effort to restore her to health. Cuming v. Brooklyn City R. R. Co., 109 N. Y., 95; 14 St. Rep., 788; Drew v. Sixth Ave. R. R. Co., 26 N.Y., 49; Whitney v. Hitchcock, 4 Den., 461; 3 Sutherland on Damages, 723.

The plaintiff, who was the only witness sworn upon the trial, testified that at the time of the accident his occupation was that of a theatrical manager; that he had had experience as a nurse and took the entire charge of his injured daughter in that capacity. After stating the value of his services thus rendered he was asked by his counsel if by reason of the severe injury to his child he was obliged to giv up a business engagement; and, although the defendant objected to the question as incompetent, irrelevant and immaterial, he was permitted to answer, and did so in these words, viz.: “Yes, I was under an engagement at this time, in the eve of. this injury, as theatrical manager. My compensation was fixed.” He was then asked to state the rate of compensation and the term of the engagement, when the defendant objected upon the same grounds as before,' and for the further reason that the plaintiff could not “ recover for that and also recover for his services during the same period in another capacity.” The court overruled the objection and the witness answered r “ Fifty dollars a week and a percentage; that contract was for the term of about twenty-five weeks; I gave it up as I said and attended to my child.” The court refused to charge, upon the request of the defendant, that the jury was not at liberty on the evidence to allow more for nursing than would have been paid to a competent, trained or professional nurse. Exceptions were duly taken by the defendant to each of these rulings.

Although it was not so stated upon the trial, the plaintiff now insists that this evidence was not offered for the purpose of effecting a double recovery, but as a circumstance to show his pecuniary situation and his dependence on his profession for support at the time he undertook to become the nurse of his child. But what bearing did the resources of the plaintiff have upon the actual worth of his daughter’s services, or the amount that it cost him to cure her? How could dependence upon his avocation for support increase the pecuniary value of her services, or the amount necessarily incurred in caring for her ? The rule governing the assessment of damages in such a case as this is compensation for pecuniary loss and the amount of that loss is not affected by the financial condition of the person sustaining it.

The accidental circumstance that the loss may at the time bear more heavily upon a poor man than a rich man cannot swell the amount that the person causing that loss is legally responsible for. "While the plaintiff was entitled to recover the value of his services as a nurse, he was not entitled to recover, in addition thereto, what he might have made if he had not abandoned his business engagement. He could not recover for services rendered during a specified period and for loss of time during the same period. He was entitled to have his pecuniary loss necessarily caused by the accident made good to him. This included the services of a nurse as long as a nurse was needed, and if the plaintiff saw fit to act in that capacity, he was entitled to the value of his services in that capacity. But if he abandoned a more lucrative occupation in order to act as nurse, the value of his services while engaged in that occupation could not properly be considered by the jury in estimating the value of his services while acting as a nurse. His services as a nurse were worth no more because he was able in some other calling to earn a large amount. If his time had been worth fifty dollars a day as the manager of a theatrical company, he would have been worth no more as a nurse than if he had had no other.occupation except that of nursing. Although the trial judge charged that the fact that the plaintiff “ abandoned a contract * * * by which he would have received fifty dollars and a percentage ” was no proof that his services were worth as much as he could have earned under the contract, still the jury were at liberty to believe that the services of the plaintiff were worth more on that account than they otherwise would have been. They may also have taken into account the loss sustained by the plaintiff in giving up a contract for twenty-five weeks with the certainty of fifty dollars a week and the possibility of much more under the percentage. The evidence was not stricken out, and the ¡jury were not instructed to disregard it. It was, therefore, in the case, and, subject to the limitation of the charge, was for the consideration of the jury, the same as any other evidence given on the trial The amount of the verdict indicates that they did consider it It was not simply immaterial, but tended to mislead the jury to the prejudice of the defendant. It was presumptively injurious, and the presumption is not rebutted by the record. It bears upon the result because it presented to the minds of the jury an improper element of damages, and, in connection with the refusal to charge, an erroneous measure of damages. Worrall v. Parmelee, 1 N. Y., 519; Baird v. Gillett, 47 id., 186, 188.

We cannot, therefore, disregard the error committed in admitting this evidence, but must give effect to the exceptions by reversing the judgment and ordering a new trial.

Judgment reversed and new trial granted, with costs to abide event.

All concur.  