
    (68 Hun, 102.)
    MOSKOVITZ et al. v. LIGHTE et al.
    (Supreme Court, General Term, First Department.
    March 17, 1893.)
    1. Negligence—Careless Driving—Question for Jury.
    In an action for the death of plaintiff’s four year old son, run over by defendant’s truck at a cross walk, evidence by one of plaintiff’s witnesses that defendant’s team was moving at a slow trot; that there were no other wagons or obstructions in the street; that the boy was on the cross walk, about 35 or 40 feet from the truck, when witness first saw him; and that he was knocked down by the horses,—is sufficient to take to the jury the question whether or not defendant’s driver, whose view was unobstructed, was negligent in not discovering the child in time to prevent the accident; and a finding in plaintiff’s favor will not be disturbed.
    2. Same.
    The fact that three disinterested witnesses, produced for defendant, supported the driver’s version,—that the death was caused by the child’s running from the sidewalk across the street against defendant’s horses, and that the driver stopped as soon as possible under the circumstances,—does not render it error for the trial court to submit the case to the jury, and to refuse a nonsuit; one of such corroborating witnesses having also testified that the driver and his assistant were talking together at the time of the accident, and that they did not look at any one until she called out to them.
    3. Death by Wrongful Act—Damages—Evidence.
    Where plaintiff is a widow, the mother of 4 children, ranging in age between 4 and 13 years, a verdict of $2,000 in her favor for the death of her 4 year old child will not be set aside as excessive, or as unsupported by the evidence, merely because plaintiff’s age was not proven, since the jury was at liberty to infer her age from the facts proven, and from her appearance.
    Appeal from special term, New York county.
    Action by Johanna Moskovitz and Joseph Moskovitz, as administrators, etc., against Charles Lighte and William Lighte, for the death of plaintiffs’ intestate, a four year old child. From a judgment entered on a verdict in plaintiffs’ favor, and from an order denying a motion for a new trial, defendants appeal.
    Affirmed.
    Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.
    Wolff & Hodge, (J. Aspinwail Hodge, Jr., and Robert Sewell, of counsel,) for appellants.
    Edgar J. Nathan, (Francis L. Wellman, of counsel,) for respondents.
   O’BRIEN, J.

This action was brought to recover damages 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 50 or 60 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 30 feet—perhaps 35 feet— away, and the boy was about 35 or 40 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. Ice Co., 110 N. Y. 506, 18 N. E. Rep. 108; Murphy v. Orr, 96 N. Y. 14; and Moebus v. Herrmann, 108 N. Y. 349, 15 N. E. Rep. 415,—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 cross walk, 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 Ms power, avoid, them. There was evidence in tMs 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 Ms control, and from Ms 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 injuries 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 cross walk, but at another point. And it was therein held, (headnote:)

“That a person on foot, desiring to cross a city street, has a right to cross, not only at the cross walk, but wherever he pleases, and one driving-horses upon the stree* is bound to be 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 cross walk, or if, seeing him, he fails to stop the 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 in 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 wore 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 tile 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. 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 plaintiff’s 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 defendant’s 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 plaintiff, 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 the 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 each 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 thé circumstance of her having young children, the award could not, under the rules for estimating damages, be 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. All concur.  