
    Cummings v. Brooklyn City R. Co.
    
      (Supreme Court, General Term, Second Department.
    
    May 18, 1889.)
    1. Railroad Company—Accident at Crossing.
    In a suit against a railroad company for damages for injuries to a child at a crossing, it is competent to show that the track was not fenced, and that a flag-man was placed at the crossing when the accident happened.
    ■2. Measure of Damages.
    Where the child has already recovered 810,000 damages, a verdict in favor of her mother for 85,000 will not be set aside as the result of prejudice, as the jury were authorized to consider not only the damage for loss of service, hut also the extra care and expense imposed upon plaintiff.
    Appeal from special term.
    Suit by Mrs. Cummings against the Brooklyn City Railroad Company, for •damages for injuries to her child at a railroad crossing. 'From a judgment for plaintiff defendant appeals.
    Argued before Barnard, P. J„ and Pratt, J.
    
      Morris <& Pearsall, for appellant. Carpenter & Roderick, for appellee.
   Pratt, J.

It is competent in an action of negligence to prove the situation of the parties, and the circumstances surrounding the transaction. It was here proper to show that the railroad was not fenced, and that the flagman was placed at the crossing where the child was injured. The effect to be given to such evidence is another question upon which the tidal judge will give proper instructions. The judge did charge, upon request of the defendant, that the law did not require defendant to have gates or flag-men at Thirty-Ninth street on the occasion that the child was injured; also that defendant was not required to blow a whistle, or ring a bell; in fact, the court below charged every material request in favor of the defendant. We cannot find any error on the admission or exclusion of evidence sufficient to warrant setting aside the verdict. The only point which seems doubtful is upon the question of the amount of damages. The child had already recovered damages to the amount of $10,000, so that the probability of the plaintiff ever being called upon for her support was very slight. The rule seems to be well settled that as between the mother and child resort maybe had to the child’s property before the mother will be compelled by law to support the child. Cuming v. Railroad Co., 109 N. Y. 95, 16 N. E. Rep. 65. The jury, therefore, regarded the sum of $5,000 as the pecuniary loss the plaintiff has sustained by reason of. the disability consequent upon the injuries to the child. Although the action is called and is in form one for loss of service, yet the jury were authorized to consider the pecuniary loss sustained by the plaintiff by reason of the injury. They were not confined to the mere amount the child would be able to earn over and above the expense of her board, clothing, and education, but could consider the extra care and expense that had been imposed upon the plaintiff through the fault of the defendant. We cannot find in the amount of the verdict any evidence of passion or prejudice on the part of the jury. Judgment affirmed, with costs.  