
    Emma D. Pitkin, as Administratrix, etc., of Fay Pitkin, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Negligence—use by a railroad of a long, movable wooden box for the convenience of passengers entering its cars — its liability to one hilled by stumbling over it—use of movable stools in place of the box — damages in case of the death of the next of hin before the trial.
    
    In an action brought against a railroad 'company to recover damages resulting from the death of the plaintiff’s intestate, it appeared that the defendant kept by the side of its track at a village ^station, for the convenience of passengers alighting from or entering its cars, a movable wooden step or box, between six and seven feet long, three or four feet wide and about six or seven inches high; that the plaintiff’s intestate, who was a boy thirteen years of age, of ordinary intelligence and experience, went to the station to meet his mother, who was arriving on one of the defendant’s trains; that his attention being attracted by seeing her, or in some other manner, he walked by the side of the slowly moving train with his face turned upwards; that he did not see the box and stumbling over it, fell under the wheels of the train and was killed.
    The accident occurred in the day time, and there was nothing to obstruct the intestate’s view of the box except persons who might pass between him and it. The intestate had been at the station before the accident.
    The box was ordinarily kept in about the same place, and so far as appeared no other accident had ever resulted from its use. It also appeared that at the time of the accident the defendant had commenced to use small stools fan the purpose of assisting its passengers to alight, and that the use of a large box, such as the one in question, was at least not general.
    
      Reid, that, assuming that the .defendant owed to the intestate the obligation to exercise reasonable care to maintain its premises in a reasonably safe condition, it did not violate this obligation by supplying the box in question and allowing it to remain- upon its premises;
    That, even if, at the time of the accident, movable stools had come into common use, the defendant was not thereby prevented from using the box.
    The intestate left surviving him, as his sole next of kin, his father. He also left a mother. Before the action came on for trial, the father died.
    
      Reid, that the death of the father did not terminate the right to maintain- the action, but that the measure of recovery therein was limited to such- damages as the father had suffered down to the time of his death.
    Appeal by the defendant, The Hew York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 12th day of January, 1903, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 7th day of January, 1903, denying the defendant’s motion for a new trial made upon the minutes.
    
      Thomas Burns, for the appellant.
    
      FramJc G. Sargent, for the respondent.
   Hiscock, J.:

This action was brought to recover damages alleged to have been caused to the next of kin of Fay Pitkin through his negligent killing by the defendant.

We think that the judgment should be reversed for the reasons that the plaintiff did not establish either negligence upon the part of the defendant or the right to recover more than nominal damages as the result of the intestate’s death, even though wrongfully caused by said defendant.

The accident happened July 18, 1900, at defendant’s station in the village of Sackett’s Harbor. It was caused by intestate’s stumbling over a stepping box placed by the side of one of defendant’s tracks at said station, and falling under the wheels of a passenger train which was drawing into the station. Defendant’s station house stood upon its grounds some distance from the street, and was approached therefrom by a plank walk or platform. Between this walk and the tracks was an open space of some considerable width, filled in with gravel or other material. Defendant kept in this space and by the side of its track a movable wooden step or box, which is claimed by plaintiff’s counsel to have been between six and seven feet long, three or four feet wide and about six or seven inches high, and which was supplied for the use and convenience of passengers in alighting from or entering the ears. It was kept in about the same place,, and it was customary to so stop trains that it would be in the right location for use. Plaintiff’s intestate was a boy, thirteen years of age, and, so far as appears, of at least ordinary brightness and experience, and he had been, at' this station before the day in- question. He came down to meet -his mother who was arriving on one of the defendant’s incoming trains, and attracted by seeing her or otherwise he walked by the side of the slowly moving car, and turning his face upwards did not see and stumbled over the box and fell under the wheels. It was in the daytime, and there was nothing whatever to obstruct his view of the box unless temporarily some person may have got between him and it. , It was close enough in to the track so that part of it would come under the car and the train was just stopping at it as the boy fell.

There was evidence that at this time the defendant had commenced to use small stools for the purpose of assisting its passengers to alight, and which were put down and taken up as occasion required, and that the use of a large step, such as the one in question, was at least not general.

We shall assume for- the purposes of this case that the intestate was so properly at defendant’s station that it owed to him the ordinary obligation to exercise reasonable care to maintain its premises in a reasonably safe condition. Giving plaintiff the benefit of this assumption, we still think that defendant did not. violate this obligation .by supplying and allowing to remain upon its premises the box complained of.

It is somewhat difficult in our view to entirely separate the questions of the defendant’s negligence and the intestate’s contributory negligence, but upon the consideration of all the facts taken together, we think it was improper to allow the jury to say that the defendant in the exercise of a reasonable care and caution ought to have anticipated that a person coming to its station in broad daylight and exercising proper care and observation was liable to stumble over this box and fall under the car.

It is conceded, as of course it must be, that it was entirely proper for defendant to furnish some sort of a step which would make it easier for passengers to get from the car step to the ground or vice versa.. This was not only proper but commendable. The plaintiff, however, says that defendant ought to have used movable stools which could be removed when the occasion - for use had passed. Even if we regard the evidence as, establishing that such stools had come into common use, we do not think that there was anything in such use which limited defendant to them, or prevented it from employing the other appliance which for a long time had been maintained at this station. It was a perfectly simple contrivance with nothing inherently dangerous about it. So far as appears it was kept in about the same spot and no one prior to this day had ever found danger or difficulty in either- using or avoiding it. If some stranger coming there in the night time had tripped' over it a different question might have been presented. But we think there was nothing which should have indicated to or warned defendant that a person in the daytime would be injured by or as the result of it.

The case is entirely different from those cited by plaintiff’s counsel to sustain his right of recovery. In Ayres v. D.,L. dk W. R. R. Co. (158 N- Y. 254) a mail bag had been left upon the station platform. That was not its proper place and it served no useful purpose by being there. In addition, the plaintiff, who was a stranger to the location, met her accident by stumbling oyer the bag in the darkness while she was properly upon the platform.

In Maclennan v. Long Island R. R. Co. (20 J. & S. 22) a box had been left upon the station platform. There was no legitimate reason for its being where it was, and plaintiff in this case also, being a stranger, stumbled over it in the darkness as he was using the platform.

The case at bar comes more within the principles of Dougherty v. Village of Horseheads (159 N. Y. 154), Robert v. Powell (168 id. 411) and Hart v. Greimell (122 id. 371).

Those actions fully establish the proposition that a defendant will not be held liable as for negligence in employing a stepping stone at the curb, or in utilizing a stone to protect his lawn, or in having in his store a truck, if such thing, even though a slight obstruction, is necessary and proper for the use to which it is employed, and is not of such a character as would lead a person in the exercise of reasonable care and foresight to anticipate, any accident therefrom to a passer-by making reasonable use of his eyes and senses.

We pass to the second question. The intestate at the time of his death left him surviving as his only next of kin his father. He also left a mother. Six months after the boy was killed and before the action came on for trial the father died. It is urged on behalf of the defendant that the father as the next of kin was the sole person for whose benefit were recoverable any damages resulting from the intestate’s death; that the opportunity for such damages termi-' noted at the father’s death, and that under the circumstances of this case thé damages which could have been sustained between the death of the boy and of the father could not be more than nominal.

We believe that an examination of the statutes upon which must rest this right of action necessarily leads to the conclusion that defendant’s contention is well founded.

Section 1902 of the Code of Civil Procedure provides that the personal representatives of a deceased person who left a husband, wife or next of kin may “ maintain an action to recover damages for a wrongful act, neglect or default by which the decedent’s death was caused.” The damages recovered in such an action are exclusively for the benefit of the decedent’s husband or wife and next of kin, and when they are collected they must be distributed by the plaintiff as if they were unbequeathed assets left in his hands after payment of all debts.” (Code Civ. Proc. § 1903.)

' The damages awarded to the plaintiff may be such a sum as the jury * * * deems to be a fair and just compensation for the pecuniary injuries resulting from the decedents death to the person or persons for whose benefit the action is brought.” (Code Civ. Proc. § 1904.)

The right to these damages is a right of property which accrues at the moment of the negligent killing and at such moment becomes vested m the beneficiary for whose benefit the action may be maintained. The right to such damages which thus accrues becomes an asset in the estate of the beneficiary designated by the statute, and the death of such beneficiary does not prevent or terminate a right of action to recover damages which have thus been by him suffered. (Matter of Meekin v. Brooklyn M. R. R. Co., 164 N. Y. 145.)

We thus have it, under these provisions and principles, that upon the death of Fay Pitkin, if he was negligently killed by defendant, a right accrued to his administrators to bring an action to recbver damages which had resulted from such death simply and solely to his father, who was his only next of kin. The statutory provisions which alone create this cause of action permit a recovery only for the person who, as the next of kin of the intestate at the moment he died, suffered damages as the result of such death. Those are the damages allowed and' recoverable to the exclusion of any other elements or consideration whatevér.: And the proposition seems tb us jplain that in this, case the jury wore limited to the allowance of such damages as the father had suffered- down to the time of .his death, and were not entitléd to consider or think of anything else. .It is conceded by the learned counsel for the respondent that, measured by such a rule as this, the damages allowed were excessive and that the father during the six months which elapsed between the death of his son-and himself could not have suffered more than nominal injury. It is suggested by the counsel, however, in his brief that the damages to be recovered become fixed at the time of the death of plaintiff’s intestate, and the subsequent death of .the father did not alter the question.” If this language^ should be construed’as holding that the right to damages in behalf of the next of kin accrued and became fixed at the time of the death of plaintiff’s intestate we should, of course, have no difficulty in agreeing with it. But we ’are unable to agree with any construction which holds that at such moment the amount of damages to be recovered in behalf of the beneficiary became so fixed that it could not be. altered by subsequent circumstances, like the death of the next of kin. It seems to us that a consideration of some of the elements which a jury are allowed to take into account in fixing .damages in such a case as, this will demonstrate in a familiar manner that the duration of the life of the next of kin is always, a feature to be considered.

In case of the death of a child the jury are entitled to take into account the fact that the father would be entitled to its earnings during minority, and that after majority such child might still continue to contribute to the support and comfort of the parent. The jury would be entitled to consider all the probable or even possible benefits which the parent might have derived from the infant if it had not died. The consideration of these pecuniary benefits which might have resulted from the life of the child, and of the damages which, therefore, flow from its death to the parent, must necessarily take into account the probable length of time during which the parent himself might live to enjoy these benefits. Ordinarily such parent is alive at the time of the trial, and the contingency of his death and of the resultant termination of all benefits which he might have derived from the child’s life is so uncertain that any conclusions which a jury may reach in reference to such benefits are not subject to review and reversal. In this case, however, no element of uncertainty in this respect exists. The father was the next of kin and solely entitled as such under the statute to any damages which resulted from the death. He had died before the trial and, therefore, there was ascertained the exact period during which he would have been entitled to the benefits of the life of the intestate. We see no way under the statute in which the jury could be allowed to measure such benefits by any such uncertain rule as would have been applicable in case the father had still been alive at the time of the trial, or in which the relationship to the intestate of other people who were not his next of kin at the moment of death can be made the basis of an additional recovery.

It may be suggested that a defendant which had negligently caused the death of one person could practically escape liability therefor if it should be guilty of still,further acts of negligence in immediately thereafter causing the death of the person who was the next of kin of the first intestate. This, of course, is an extreme illustration, but we are unable to perceive any way in which jt may properly lead us to seek to overrule absolute statutory provisions. The statutes, in creating this new cause of action, have seen fit, as' we read them, to limit the damages recoverable to those sustained by the next of kin at the time of the death. They have not seen fit to take into account the possibility that by the speedy death of such next of kin the damages recoverable might be made nominal, or that if, upon the other hand, the next of kin might be credited with a probable long life, he might recover large damages, which, through his estate, might be passed over to other relatives. The other relatives of the intestate in this case are in no different legal condition than that which they would have occupied in case- the father had been alive at the time of the trial. He then would have been entitled, if at all, to substantial damages, which would have been absolutely his, and no other member of the family of the original intestate would have had any interest therein, except the remote and possible one of gift or bequest from the father.

While the conclusions thus reached by us are not expressly stated in, we think they are fully warranted by the discussion in and principles of Mundt v. Glokner (26 App. Div. 123); Lipp v. Otis Brothers & Co. (161 N. Y. 559); Matter of Meekin, v. Brooklyn H. R. R. Co. (supra).

The judgment and order should! be reversed and a new trial granted, with costs to the appellant to abide event.

All concurred, McLennan, P. J., on first ground stated in opinion only.

Judgment and order reversed and new trial ordered, with costs to the appellant to abide the event, upon questions of law ojjly, the facts having been examined and no error found therein.  