
    THURINGER v. NEW YORK CENT. & H. R. R. CO.
    (Supreme Court, General Term, Fourth Department.
    September 23, 1893.)
    1. Negligence—Dangerous Premises—Ice on Sidewalk.
    In an action against a railroad company for injuries to plaintiff from slipping on ice which, had accumulated on the sidewalk from water dripping from the spout of defendant’s water tank, it was for the jury to say whether defendant was negligent, and whether its negligence caused or contributed to plaintiff’s injury.
    2. Same. "
    In such case, defendant could not defeat a recovery on the ground that,. the obstruction being on the sidewalk, the'city only was liable.
    3. Same—Contributory Negligence
    Whether a woman injured by falling on ice negligently allowed to accumulate on the sidewalk by an adjacent owner was negligent in not discovering the ice is a question for the jury.
    4. Personal Injuries—Action by Married Woman—Damages.
    A married woman suing for personal injuries cannot recover for loss of' time, where there is no proof that her husband has not assisted her, or has agreed that she should have her earnings, though she testifies that her husband has left her, and not lived with her for 12 years, during which time she has worked out and taken in washing, and has had all her earnings-for the maintenance of herself and children, as the husband only, in such case, can sue for such damages.
    Appeal from circuit court, Oneida county.
    Action by Mary Ann Thuringer against the New York Central & Hudson River Railroad Company for negligence. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals.
    Reversed.
    The complaint alleges: “The said defendant wrongfully and unlawfully and negligently permitted and allowed water to flow and escape from-the water pipe, tank, and its locomotives, * * * and from the premises of defendant, on the sidewalk of said James street, in the city of Rome, the same being á public street, and wrongfully and unlawfully and negligently permitted the same to remain and to continue to flow and escape onto said sidewalk until a large accumulation of said water on said sidewalk froze, and became icy and slippery, and dangerous to the-public and people traveling on said walk and street, and wrongfully and negligently neglected to remove said tank and accumulation of ice caused' as aforesaid, after it had knowledge that it was dangerous; * * * and the-said plaintiff, on or about January 10, 1892, while walking on said sidewalk, without any cause or fault of hers, slipped and fell, thereby seriously and permanently injuring her, and making her sick and sore, and unable to attend to her business.” The answer denied the complaint, and alleged the injury in the complaint “was the result of the carelessness, negligence, and want of proper caution on the part of the plaintiff, and not otherwise.”
    Argued before HARDEST, P. J., and MERWTN and PARKER, JJ..
    C. D. Prescott, for appellant.
    McMahon & Curtin, for respondent.
   HABDIN, P. J.

1. On the 10th of January, 1892, the plaintiff resided in the Hager block, on James street, in the city of Home, and had occasion to visit Antmann’s, south of the railroad. About 9 o’clock, in company with her son, a boy some 14 years old, she started to return to her residence, passing along the sidewalk on the westerly side of James street, towards the defendant’s road, near its water tank; and she testifies:

“My both feet went out from under me, and I went down in a heap. I tried to get up, and I couldn’t. I fell again, and I discovered ice under my hand, and I looked up, and saw the water spout while I was lying there. My boy came then, and tried to get me up, and I couldn't stand on mv feet. As I fell, I struck on my left hip,—sat down on it,—right on my left side. My left side was towards the left side of the sidewalk as I came up. I fell with my whole side down, over on my left elbow. I tried to get the first time on my knees, and couldn’t get any further, and I fell down again because 1 was so sick,—because I felt sick to my stomach, and everything whirled around me. I noticed the water column when I tried to get up the second time.”

Prank, her son, who was with her on the occasion when she fell, testifies:

“When she fell, she was about three feet from track No. 1. She was right opposite the spout when she fell. She fell right over on the left side, towards the spout. I noticed the condition of the sidewalk in front of that spout at that time. It was very icy. The ice extended over the whole sidewalk, and was underneath the spout, and around the standard, and it extended all through track No. 1 to the walk over track No. 1.”

Other witnesses were called, who testified as to the condition of the sidewalk; testified as to the manner in which the water column was used, and the effect caused by the drip, and that the action the wind carried the water sideways from the mouth of the column at times. Upon the whole evidence relating to the subject, we are of the opinion that it was a question of fact whether the defendant was guilty of negligence, and whether the negligence of the defendant caused or contributed to the injuries which the plaintiff received.

At the same point where this accident occurred another injury was caused to a person passing along the sidewalk, which led to an action, and the trial thereof was brought into this court for review; and our opinion delivered in that case is found in 20 N. Y. Supp. 914, in McGoldrick against the defendant. In that case, in the course of the opinion delivered in behalf of the court, it was said:

“Whether the intestate fell by reason of any wrongful act or neglect of the defendant was, upon the evidence, a question of fact The defendant claims that there, is no basis for a recovery, because the obstruction was upon a sidewalk, and the city, therefore, only liable. It has, however, been held that an owner of adjacent premises, who, without authority, interferes with a sidewalk for his private purposes, and fails to restore it to a safe condition, is liable to any one sustaining injury thereby.”

Applying the doctrine found in the opinion from which the quotation has been made, we think there was no error, upon the facts before the court, in submitting the question of the defendant’s negligence to the jury.

2. The trial judge, in dealing with the question of whether the plaintiff was guilty of contributory negligence, said:

“She was walking in a public street,—upon that part of it, the sidewalk, prepared especially for foot passengers; and it is for you to say whether she was guilty of negligence or not in walking along there without looking to see whether there was any danger. * 51 * If you find that she was guilty of negligence, and that her negligence contributed to the injury which she sustained, then she cannot recover, even if the defendant was guilty of negligence.”

We think the trial judge was warranted by the evidence relating to the question of her freedom from contributory negligence in submitting it to the jury, and that the charge was as favorable as the defendant was entitled to have delivered upon that subject.

3. In the course of the charge upon the subject of damages, the judge said: “You can allow her for her loss of time, for her suffering, and for the pain that she has sustained. * * At the close of the charge the defendant’s counsel requested the court “to charge that the plaintiff is not entitled to recover in this action for any loss of time which she applied to her household service or services.” In response to that request the court observed: “Of course, that would be so if she was living with her husband. I decline to charge that.” The defendant took an exception, and requested the court “to charge that the husband has a right of action against the defendant for all loss of household services occasioned by this accident, if any one is entitled to recover for this accident.” In response thereto the court observed, “I decline to charge that, as applicable to this case;” and the defendant took an exception thereto. It appeared in the evidence that the plaintiff was a woman some 56 years of age; that she had had several children; and she testified that she had lived in Borne 23 years, and, also, “My husband is not living with me,” and that it was about 12 years since he had lived with her. There was no proof of his death. There was no proof that she had not heard from him during the period of time covered by the separation from him, or where he was, or that he had not assisted her, nor was there any proof that there had been a dissolution of the marriage relation, or an agreement that she should have her earnings separate and independent of any claim by him. She did testify, however, that during the time she had mentioned she had “worked out, and earned money by cleaning and washing. All the earnings I have, I have had for my own support and maintenance since that time. Prior to the 10th day of January, and for a number of years, or since the time my husband left me, I have been working out by the day, and taking in washing.” In Fifer v. Railroad Co., 49 N. Y. 56, which was an action by a married woman for injuries sustained, Allen, J., said:

“Her services and earnings belonged to her husband, and for loss o£ such services, caused by the accident, he may have an action.”

In Brooks v. Schwerin, 54 N. Y. 348, it was said;

“The services of the wife in the household still belong to the husband, and, so far as an injury to her disables her from performing such services, the loss is his, and he, not she, can recover therefor.”

That case was cited in Coleman v. Burr, 25 Hun, 242, in an opinion delivered for this court, approvingly, and the opinion stated:

“And, so far as an injury to her disables her from performing such services, the loss is his, and he, and not she, can recover therefor.”

Our decision in that case was affirmed in 93 N. Y. 17. These and other cases were referred to in the opinion delivered in Blaechinska v. Howard Mission, 130 N. Y. 503, 29 N. E. Rep. 755, and near the close of the opinion it is said, viz.:

“Applying the law, as we gather it from the statute and the manifold decisions, to the facts of this case, as now laid before us, we think the plaintiff is entitled to recover actual damages only, and that the consequential damages for the loss of her services, both in the house and in the shop, should be recovered by her husband in a separate action brought in his own name. The damages for the injuries to her person belong to her, because the statute has given them to her; but the damages for the loss of her services belong to him, because the common law gave them to him, and the statute has not taken them away.”

Applying the doctrine of the cases to which reference has been made, we are of the opinion, under the facts disclosed in this case, the learned trial judge ought to have yielded to the request to charge “that the husband has a right of action against the defendant for all loss of household services occasioned by this accident, if any one is entitled to recover for the accident.” For the .error presented by an exception taken to the refusal to charge as requested, we think a new trial must be ordered. Judgment and order reversed on the exceptions, and a new trial ordered, with costs to abide the event. All concur.  