
    Johanna Moskovitz et al., Adm'rs, Resp'ts, v. Charles Lighte et al., App'lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 17, 1893.)
    
    1. Negligence—-Cashless dbiving.
    Proof by a witness that when she first saw defendant’s wagon it was thirty-five or forty feet from the crosswalk, with the team going at a slow trot; that there were no obstructions to the view; that plaintiffs’ child, four years old, was crossing, and was knocked down by the horses, is sufficient to make out a prima facie case of negligence, as it is susceptible of the inference that if the driver had been sufficiently vigilant and careful, he would have seen the child in time to avoid injuring it.
    2. Same.
    The fact that plaintiffs had only one witness, and that three disinterested witnesses testified that the child ran into the horses, and that the driver stopped as soon as possible, does not constitute such a preponderance of evidence in favor of defendant as to require a reversal, where one of such witnesses also testified that the two men on the wagon where talking together and did not look until an alarm was given.
    3. Same—Damages.
    Where the plaintiff is a widow, with four children between tne ages of thirteen and four years, a verdict of $2,000 for the death of the youngest child caused by negligence is not excessive.
    Appeal from a judgment entered upon the verdict of a jury, and from an order denying defendants’ motion for a new trial, in an action to recover damages for negligence.
    
      J. Aspinwall Hodge, Jr., and Robert Sewell, for app'lts; Edgar J. Nathan (Francis L. Wellman, of counsel), for resp'ts.
   O'Brien, J.

This action was brought to recover for the negligence of the defendants’ servants, in causing the death of plaintiffs’ intestate. At the time of his death the decedent was four years of age, and lived with his mother, who was a widow. On the morning of the accident he was playing in his mother’s room, but, during the latter’s absence to fetch water the child escaped, and got into the street, where it met with the injuries resulting in its death. The age of the child, and the circumstances under which it got upon the street, presented a question for the jury as to whether the negligence of the child itself, or that of the mother, assuming upon the facts that it was imputable to the child, contributed to the death. The more serious questions are : Did the plaintiffs make out a prima facie case of negligence on the part of defendants’ servants ? And, assuming they did, was not the weight of evidence, upon the whole case, with the defendants, upon the question of such negligence?

All the testimony presented on the part of the plaintiffs, being that of one witness, is so brief that we can give a complete summary of it. Blumenfelt, called on behalf of plaintiffs, and who was examined through an official interpreter, testified as follows : That on the 9th of May, 1892, when the accident occurred, “ I was standing at Avenue A, corner of First street, at the southwest corner. I saw that the wagon of Lighte Bros, came along from Houston street to Avenue A. It came from Houston street, east side, to the west side of Avenue A. I first saw the truck when it came into Avenue A. The horses were only going ordinarily, like ; slowly; not very quickly. They were in a trot The horses, when I first saw them, were about fifty or sixty feet away from me. I did not see any wagon or other obstruction between me and this truck. I first saw this little boy when he was on the cross walk between the butcher shop and music store. He was coming from the meat market to the music store. When I first saw the boy on the cross walk, this truck was about thirty feet, perhaps thirty-five feet, away, and the boy was about thirty-five or forty feet from the truck. The boy was not going quickly. He was walking. I saw that the boy fell from the first horse of the truck, fell in front of the horse. The feet of the horse made him fall. When he fell, he was over the tracks, near the corner of First street.”

He further testified that there was no truck, carriage, or other wagon in front of defendants’ truck before it struck the boy, to prevent the witness seeing the accident, and, further, that he heard a-scream, and it was after he heard this scream that the driver stopped his horses. While this evidence is very slight and unsatisfactory, we cannot, as a matter of law, in the face of the cases of Birkett v. Knickerbocker Ice Co., 110 N.Y., 506; 18 St. Rep., 130; Murphy v. Orr, 96 N. Y., 14; and Moebus v. Herrmann, 108 N. Y., 349; 13 St. Rep., 648, hold that this testimony did not present a prima facie case for the jury upon the question of defendants” negligence. In Murphy v. Orr, which was a case like this, of a child, between three and four years of age, while on the crosswalk, and passing over, being knocked down by one of the horses of a team attached to the defendants’ truck, and the testimony in that case showing that the horses were moving at a walk, it was held that the trial judge committed no error in charging the jury to say whether, under all the circumstances surrounding the transaction, the driver was negligent in not discovering the child in time to prevent the injury; and, in the course of the opinion, Danforth, J., says: “ Whoever drives horses along the streets of a city is bound to anticipate that travelers on foot may be met at the crossing, and must take reasonable care not to injure them. He is negligent whenever he fails to look out for them, or when he sees, and does not, so far as in his power, avoid them. There was evidence in this case fairly leading to either of these conclusions in regard to the driver’s conduct. The day was clear and bright. The street was unobstructed. The horses, quietly moving on a walk, were completely under his control, and from his elevated seat he could, as is conceded, see a block away, and all around,, in front and on both sides.”

This view as to the duty devolving upon drivers of trucks upon the public streets was enforced in the case of Moebus v. Herrmann, supra, which was a like action, to recover damages for personal in> juries received by a boy about seven years of age, who, when crossing a street in the city of Brooklyn, was struck, knocked down and.injured by a horse belonging to defendant, attached to his truck, and driven by his servant. The additional fact appeared that the injury was received while the boy was attempting to cross the street, not at the crosswalk, but at another point. And it was therein held (head note:) “ That a person on foot, desiring to cross a city street, has a right to cross, not only at the crosswalk, but wherever he pleases, and one driving horses upon the street is bound tobe watchful at all points, as well as at the crossings, so as not to injure persons crossing. If, therefore, through the omission of a servant engaged in the business of, and driving the horse of, his master, to perform this duty, he does not see a person crossing at a point where there is no crosswalk, or if, seeing him, he fails to stop his horse in time, when, with proper care, he might have done so, and the latter is injured without fault or negligence on his part, the master is liable for the damage.”

The principle enunciated in these two cases was again enforced in Birkett v. Ice Co., supra, which was a case of a girl, four years and a half old, being killed by horses attached to defendant’s ice wagon, which were driven against her at a street crossing in the city of Brooklyn. This, upon many of the questions here involved, is an instructive case,-and is to us a seeming authority upon the question of the sufficiency of plaintiffs’ testimony as to making out a prima facie case, and upon the rule to be applied in determining -what degree of care is to be exacted of a child of tender years. In the opinion it is said: “If the intestate had been an adult, we think the evidence would have justified the claim of the defendant, that her own negligence contributed to the injury. But she was non sui juris, and personal negligence could not be imputed to her. It is, however, contended that she was so young that her parents were guilty of negligence in permitting her to go into the streets unattended. The intestate resided with her parents in a thickly populated neighborhood, and there was no inclosed space around the house for children to play, and plaintiff’s children were permitted to play upon the sidewalk near his house. * * * It cannot be said that it was, as a matter of law, under the circumstances proved, negligence for the parents to permit her to go on the sidewalk to play; and whether it was or not was a question for the determination of the jury.’’

And again, in the opinion, it is said, and this bears upon the question we are discussing, as to whether the plaintiffs here made out a prima facie case: “We are also of opinion'that there was no error in submitting the question of the negligence of the defendant’s driver to the jury. His wagon was heavily loaded, and he was driving upon a descending grade. There was apparently nothing to distract his attention, and it was his duty to be vigilant to see obstructions in the street, and particularly at street crossings, so as not to injure them. While we do not think this branch of the plaintiff’s case is free from doubt, we are unable to say that the jury could not properly find that, if the driver had been sufficiently vigilant and careful, he would have seen the child in time to avoid injuring her.”

So we say here. The plaintiffs’ testimony is unsatisfactory, and by no means free from doubt; but it is susceptible of the inference that, if the driver had been “ sufficiently vigilant and careful, he would have seen the child in time to avoid injuring him.”

The evidence of the plaintiffs being, upon the authority of these cases, sufficient to make out a prima facie case, the question still remains as to whether or not, upon the whole case, considering the number of witnesses produced by defendants, there was not a clear preponderance in defendants’ favor upon the question of negligence, sufficient to justify a setting aside of the verdict. It must be remembered, however, that a judgment will not be reversed on the ground that the verdict is against the weight of evidence merely because this court is of opinion that, if it had to decide the question of fact, it might take a different view, and reach another conclusion, but that it is only where the verdict is without evidence, or so decidedly against the weight of evidence as to indicate partiality, corruption, or gross ignorance; that this court will disturb the verdict.

Outside of the driver and his assistant, three disinterested witnesses were produced for defendants, who tended to support the version given by the driver, that the death was caused by the child’s running from.the sidewalk across the street, and into the defendants’ horses, and that the driver stopped as soon as, under the circumstances, it was possible. It is argued that these witnesses in no way contradicted the witness produced by the plaintiffs, but that they supplemented and reconciled his testimony to a version consistent with the absence of negligence upon the part of the defendants’ servants. While there is much force in this suggestion, and while thé case, upon all the facts, is a close one as to whether or not the motion to dismiss the complaint should not have been granted, we think that, upon the authorities already cited, it was a question, upon the entire testimony, to be presented upon both branches to a jury; and a piece of evidence that is to some extent important, given by one of the disinterested witnesses for the defendants, might, if the jury gave it sufficient weight, have explained the failure of the' defendants’ driver to observe the child .in time to avoid the injury. The testimony of this witness, who was a woman, was that “ there were two men on the wagon, one with light hair, and one with black, and they were driving ahead. They were talking together. They did not look at no one,,at all until after I hollered.” Upon a fair and impartial charge, therefore, the questions having been presented to the jury, their verdict is conclusive.

The amount awarded by way of damages, namely, $2,000, is large, but not so excessive as to justify us in reversing the judgment upon this ground. As said in Lockwood v. Railroad Co., 98 N. Y., 523: “ The courts have found it impossible to lay down any definite guide for the jury in estimating damages under the act in question. * * * In but few cases arising under this act is the plaintiff able to show a specific pecuniary loss suffered by the next of kin from the death, and generally the basis for the allowance of damages has to be found in proof of the character,, quality, capacity and condition of the deceased, and in the age,, sex, circumstances and condition of the next of kin. The proof' may be unsatisfactory, and the damages may be quite uncertain and contingent Yet the jurors, in e'ach case, must take the elements thus furnished, and make the best estimate of damages they can.”

Here the evidence showed the condition and circumstances of the mother, who was the sole next of kin; and she testified as to-the facts connected with her own affairs; that she was a widow, the mother of four children; the eldest but 13, and the youngest, the decedent, but 4 years of age. And this testimony was presented for the consideration of the jury.

It is insisted, however, that in addition to condition and circumstances, the age of the mother should have been given. In Carpenter v. Railroad Co., 38 Hun, 120, the following appears-in the opinion: “One element in the sources from which loss, to those for whose benefit a recovery in such case is had, is to-be ascertained, is their age, condition and circumstances. There is an entire absence of evidence in any of those respects of the father of the deceased. That he was living is the only fact, which can be assumed in relation to his condition upon the-evidence.”

This case it is contended by the appellants, is conclusive of the view that the failure to prove the age of the mother was fatal to any recovery beyond nominal damages. We think, however, that, taking the very language which we have quoted from the opinion in the case relied .upon by him, he overstates the rule-in his own favor. That case does not go to the extent of holding that the mere failure to prove the age is fatal to any recovery. In that case there was no proof of age, condition or circumstances, and, as therein stated, there was no evidence before the-jury except the single fact that the father, whose loss was to be* determined and compensated in damages under the statute, was-alive.

Here, as shown, the circumstances and condition in life of the mother were proved. She was produced as a witness and examined before the jury, who, independently of the information derived from her testimony, were in a position to determine, without any great danger of being seriously misled, about her age. Had. she not been produced, there would be much force in the argument of appellant; but, being fully examined and cross-examined by counsel upon the trial, and proof being furnished that she had young children, this, together with her appearance, was evidence from which the jury were at liberty to infer her age. And even though she had been much further advanced in years than the jury would have been justified in concluding from the circumstance of her having young children, the award could not, under the rules for estimating damages, bfe deemed excessive, and the judgment on this account should not be disturbed. We are of opinion, therefore, that the judgment should be affirmed, with costs and disbursements.

Van Brunt, P. J., and Follett, J., concur.  