
    John Lang, Resp’t, v. The New York, Lake Erie and Western R. R. Co., App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 11, 1889.)
    
    1. Negligence—Evidence—What proof sufficient to make out action.
    The plaintiff’s son, a boy eleven years old, got on a freight car of the defendant. He had no permission to ride, and after the train had started, a brakeman told him to get off. The boy did not comply, and the brakeman began to throw pieces of coal at him. Just as the boy was preparing to jump off, the brakeman rolled a large lump of coal on top of the car-which struck the boy on the head; he at once fell off the car and went under the wheels and was injured. At the time of the accident the train, was going at about ten miles an hour. Held, that an action is made out for the injury against the company.
    2. Same—Master and servant—When not necessary to show specificOjRDElí,
    It is not necessary to show specific orders to the brakemen by the master to drive off boys who are stealing a ride, when the brakemen are engaged in the master’s business and acting within the general scope of their authority.
    3. Same—Measure of damages.
    Where there is proven an injury which, of necessity, makes the person injured more helpless, and where, from the very nature of the case, there; can be given no positive evidence further than this fact, the jury in estimating the damages must estimate it as they would the value of a life» with no more specific basis.
    Appeal from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial.
    
      
      B. F. Tracy, for app’lt; Samuel Keeler (C. S. Rush, of counsel), for resp’t.
   Barnard, P. J.

—The plaintiff’s son, a boy of eleven years of age, got on a freight car of defendant at Hoboken, Hew Jersey. The object of the boy was, and it seems to have been a habit with boys in the neighborhood, to ride some six blocks to Wehauken. The plaintiff had no permission to ride, nor did the other boys. On this particular occasion a brakeman, after the train had started, told the boy to get off. The boy replied, wait until you get to Wehauken. The brakeman replied, no, and began to throw pieces of coal at the boy. The boy retreated to the next car behind him, and the brakeman pursued. Just as the boy was getting ready to jump off, the brakeman rolled a large lump of coal on the top of the car, .and the coal struck the boy on the head. The boy at once fell off from the car, went under the wheels and lost his foot and part of his leg. At the time of the accident the train was going about ten miles an hour. Upon this statement of facts, as found by the jury, an action is made out for the injury. It was not a willful wrong, and it was a great mistake in judgment upon the part of the brakeman. The boy was very young, and the train was going fast, and the means used by the brakeman seem'to have for an instant rendered the lad insensible, and the result was occasioned thereby.

;■ < It is not necessary to show specific order to the"brakeman by the master to drive off boys who were “ stealing a ride.” The brakeman was engaged in the master’s business, and acting within the general scope of the authority. He simply did not maintain his self-control nor use good judgment as to the time when it was safe to drive the trespassers from the train. Rounds v. The Del., Lackawanna and Western R. R., in 64 N. Y, 129.

The brakeman was apparently engaged for the defendant, and clearly was not pursuing his own purpose, and so the jury has found. The action is, therefore, proven. The judge charged the jury that they could give damages for the care and nurture of the child so far as they were made more expensive by the injury. There was no proof that there would be greater expense in consequence of the injury, but there was proven an injury, which, of necessity made the child more helpless, and from the very nature of the case, there could be no positive evidence given further than this fact. The jury must estimate it as they would estimate the value of a fife with no more specific basis. O'Mara, Admr. v. The H. R. R. R. Co., 38 N. Y., 445.

The case of Cuming v. Brooklyn City R. R. (109 N. Y., 95; 16 N. Y. State Rep., 998), is not adverse to this case. The point in the case whether the parent could recover for an estimated further surgical operation, and the court held that such an item pertained to the child’s action, and not to the action for loss of service, the case holds that a jury can estimate further loss of service from experience, and such evidence as can be given. If the jury could take into consideration the stimated increased cost of caring for and bringing up a crippled child, the verdict is fully supported by the-evidence. Fifteen hundred dollars is not an extravagant-verdict for such a case, nor is it even exaggerated.

The judgment ought, therefore, to be affirmed, with costs.

All concur. _  