
    *McIntyre, administrator, v. New York Central Railroad Company.
    
      Contributory negligence.—Damages.—Testimony of deceased witness.
    
    Where a passenger is directed by one of the servants of a railroad company, to pass from one car to another, whilst the train is in motion, in order to procure a seat, the act of so doing does not amount to contributory negligence per se; the question of actual negligence should be submitted to the jury.
    In an action for death by negligence, the jury may take into consideration such damages as arise from tire loss of personal care, intellectual culture, and moral training which would have been otherwise received from the deceased.
    The testimony of a deceased witness may be proved by one who took minutes thereof, at the time, intending to take down the substance of the testimony, so far as possible, in the language of the witness.
    McIntyre v. New York Central Railroad Co., 43 Barb. 532; s. c. 47 Id. 515, affirmed.
    Appeal from the general term of the Supreme Court, in the seventh district, where an order denying a motion for a new trial, upon the judge’s minutes, had been affirmed, and judgment entered upon a verdict in favor of the plaintiff, with an abatement of the amount. (Reported below, 47 Barb. 515; and on a former trial, 43 Id. 532.)
    This was an action by George H. McIntyre, administrator of Susannah Knight, deceased, against the New York Central Railroad Company, to recover damages for the negligent killing of the plaintiff’s intestate upon the defendants’ railroad, on the I4th November 1859. On the first trial of the cause, the plaintiff was non-suited, but the nonsuit was set aside by the general term, and a new trial awarded. (43 Barb. 532.)
    On a second trial, before WelleS, J., it appeared, that on the 14th November 1859, Mrs. Knight, the plaintiff’s intestate, started from Rutland, Vermont, in company with her father, to proceed west, into the state of Pennsylvania. They took the defendant’s cars at Schenectady, and proceeded therein to Syracuse. On arriving at that place, they were seated in the rear car of the train, which the employees of the defendánt there determined to detach from the train and leave at that place. That it was so to be left, was announced by the brakeman to the passengers in that car, and they were requested by him to leave it and go into the forward cars. The passengers immediately left that car, and went into one nest forward of it. • The train started about the time the passengers got into this car, and there being no seats in it, unoccupied, the passengers were compelled to stand, and were standing in the aisle of the car. At this time, and after the train had started, an employee of the defendant came into the car, with a lantern in his hand, and said, “ Go forward, there are plenty of seats forwardgo forward, if you want seats.” Some of the passengers *then went forward whilst the cars were in motion, and among them the deceased. Mrs. Knight, in stepping from one car to another, either did not step far enough, or her feet slipped, and she fell between the cars and was killed. It was a dark night, and it did not appear that any of the employees of the company were aiding or assisting the passengers in their passage from one car to the other.
    
      Testimony was given of the age and circumstances of the deceased; she was between forty-five and fifty years of age, and lived with a married daughter, who had a family of children; she also left two sons, who were of full age.
    The jury rendered a verdict in favor of the plaintiff for §3500 damages; and a motion for a new trial, made upon the judge’s minutes, was denied; but on appeal to the general term, a new trial was ordered, unless the plaintiff would remit $2000 of the amount of the verdict; which having been done, and judgment perfected for $1500, with interest, the defendant appealed to this court. The charge of the judge, to which exception was taken, is stated in the opinion.
    Harris, for the appellants.
    Cogswell, for the respondent.
   Davies, C. J.

(after stating the facts.)—It is now urged by the counsel for the appellant, that there was evidence that the negligence of the deceased contributed to the injury, and that, consequently, there can be no recovery, and he insists, that that was a question for the court to decide, and that it was error to leave to the jury the question of the plaintiff’s negligence or contributory negligence.

There was much evidence tending to show that in moving from the one car to the other, the deceased was but obeying the directions of the employees of the defendant, and it was eminently proper for the judge to have left to the jury the question, whether, under the circumstances disclosed, the deceased was guilty of any negligence in complying, or attempting to comply, with those directions. The learned judge properly told the jury, that they could judge whether it was safe for a woman to travel, with her incumbrances, on such a night as that is represented to have been, and they could judge, too, whether it was right and proper for her, in order to get a seat, to undertake to pass from one car to another. That the jury could judge whether it was reasonable and proper for her to rely upon the ^^rec^ons a man appearing to be in his *place as an employee of the company. And he further instructed the jury, that, if it was negligent for Mrs. Knight to follow the direction of this man with the lantern, it must have been such negligence as contributed to her death. The jury, by their verdict, have answered, that it was not negligent for the deceased, under the circumstances, to have followed the directions of the man giving the same. The court could not say, as matter of law, that it was negligence on the part of the deceased, to follow that direction, and whether there was negligence, or not, was therefore properly left to the jury, and they have responded, that there was no negligence on the part of tbe deceased, and that settles this question.

I am unable to discover any error in the charge of the judge, in reference to the damages which the plaintiff was entitled to recover. At the request of the defendant’s counsel, the judge charged the jury, that the burden of proof is upon the plaintiff, ■ to prove the pecuniary injury, and such facts as could enable the jury to determine what would be a fair and just compensation, with reference thereto, to the next of kin, to entitle the plaintiff to recover more than nominal damages; and, also, that the jury had no arbitrary discretion in regard to the amount of damages, but must be governed by the weight of evidence, as to what would be a fair and just compensation, with reference to the pecuniary injuries sustained by the next of kin. These directions were in strict accordance with the doctrine as laid down by this court in the case of Tilley v. Hudson River Railroad Co. (24 N. Y. 471, and s. c., 29 Id. 252).

That portion of the judge’s charge on this subject, to which exception was taken by the defendant’s counsel, was also in harmony with the opinion of this court in the case last cited, and is but a reiteration of the doctrine there enunciated. We there said: “The jury are to give such damages as they shall deem a fair and just compensation, with reference to the pecuniary injuries x*esulting from such death. They ai’e not tied down to any precise rule, within the limit of the statute, as to amount, and the species of *injury sustained, the matter is to be submitted to their sound judgment and sexxse of justice. They must be satisfied that pecuniary iixjuries resulted; if so satisfied, they are at liberty to allow them from whatever source they actually proceeded which could produce them. If they are satisfied from the history of the family, or the intrinsic probabilities of the case, that they were sustained, by the loss of bodily care, or intellectual culture, or moral training, which the mother, in that case, had before supplied, they are at liberty to allow it.” The statute has set no bounds to the sources of these pecuniary injuries. The charge of the judge to the jury in the present case is unobjectionable, in the light of this authority.

Upon the trial, a witness was asked: “ At the time of the death of the deceased, what was she capable of earning?” This was objected to by the defendant’s counsel, on the ground, that it was not competent, on the question of the worth of this woman’s life to the next of kin. The court overruled the objection, and the defendant’s couixsel excepted. It does not appear that the question was answered. The witness was then asked: “ And what did she usually earn ?” This was also objected to, on the same ground, and the objection overruled and an exception taken. The witness answered: “.Her services commanded, readily, at that time, at least one dollar per day, in addition to her board.” It is now urged, that both of these questions were improper, as calling for the opinion of the witness. It is a sufficient answer to say, that no such objection was taken upon the trial; and, if taken, as applicable to the first question put, it is now wholly immaterial, as that question was not answered, and such an objection could have no pertinency in reference to the second question. This question does not call for any opinion, but for a fact—-what did she usually earn? This was a material and important inquiry, in forming an estimate of the pecuniary loss sustained by the next of kin, by the occasion of the death of the deceased.

Upon the authority of th.e case of Clarke v. Vorce (15 Wend. 193), the judge committed no error in allowing the notes of the testimony of the witness Seely ^ie mean^me *ffied), taken by Mumford upon the former trial, to be read on this trial. In that case, the witness testified, that on the former trial, he acted as counsel for the defehdant/and took very full and particular minutes of one Haight’s testimony; that he intended, at the time, to take down the words of Haight, but could not pretend to give his precise words; that he could not swear to Haight’s testimony, except from the minutes taken by him on that trial, and could not now testify that lie had taken down every word of his testimony, but he intended, at the time, to take down all he regarded as material. The supreme court thought the testimony should have been received. Chief Justice Savage observed: There are few or no cases where a cautious and prudent man will swear that his notes of testimony of a witness, taken at the time, contain his very words, and all his words.”

In Huff v. Bennett (6 N. Y. 337),- the learned judge who presided at the trial of this action, and admitted the notes of Seely’s testimony; in delivering the opinion of the court, said: “ The case of Clark v. Vorce (supra) was very different from that case. The witness there could not swear that his minutes contained the testimony of Scott, accurately, and that he might have omitted things that he testified to. He did not say, that he believed his minutes to he correct, nor that he intended to take down the words of the witness.”

In the present case, the plaintiff called one of the counsel of the defendant, to prove the testimony given by the witness Seely, on a former trial of this action, he having since that trial died. He testified, that he was one of the counsel for the defendant in this action, was present at the former trial, and took notes of testimony, he had them there in court. He says: “So far as I took minutes, I took them as given by the witness, so far as I could; I designed to take the substance of the testimony, as given by the witness, and presume from that, I have; I have no recollection of the testimony, aside from what I have here.” On his cross-examination, he said: “Should judge that it was not possible for me to take the whole testimony verbatim; did not aim to take more than *the substance; do not say, that I have the whole language of the witness, nor the whole of his testimony.” In response to the court, the witness said : “ I have no recollection of the witness, or of the testimony, not the slightest whatever; I have his testimony on my minutes, and presume it is the substance of his testimony.” The plaintiff’s counsel then offered to read the evidence of Austin H. Seely, as given upon the former trial, as shown by the notes of testimony taken by the witness. The defendant’s counsel objected, on the ground, that it did not appear that the whole of the testimony was taken, or that the testimony, as given, was taken down, and that the necessary preliminary proof of the accuracy of the- notes had not been made. The court overruled the objection, and admitted the evidence, to which the defendant’s counsel .duly excepted. When it is observed, that the witness called upon to prove the accuracy of his notes, was manifestly an unwilling witness, it cannot fail to he seen, that his whole testimony, when taken together, comes fully up to the doctrine of Clark v. Vorce (supra). There was no error, therefore, in the admission of the notes taken by Mumford, of Seely’s testimony. It follows, that the judgment must be affirmed.

Fullerton, J.

The plaintiff brought his action, under the statute, as administrator of Mrs. Susannah Knight, deceased, on behalf of her next of kin, to recover damages for her death, alleged to have been caused by the negligence of the employees of the defendant, in November 1859. It was proved on behalf of the plaintiff, upon the trial, that Mrs. Knight, in company with her father, an old man, took the cars of the defendant at Schenectady, and proceeded to Syracuse, occupying the rear car of the train. At Syracuse, the car in which they were seated was detached from the train, and they were directed to go forward into the next car. The testimony on the part of the plaintiff was to the effect, that they had barely time to reach the next car, when the train was started. There were no seats in the car which they entered, and they were directed by a man carrying a *lantern, and appearing to be one of the employees of the road, to go forward—that there were seats forward.” In compliance with this direction, Mrs. Knight and her father attempted to reach the next forward car, the train being at that time in rapid motion, but in passing from the one platform to the other, she fell between the cars and was instantly killed. It was a dark and somewhat stormy night—a rain or sleet falling and freezing.

It was further proved, on behalf of the plaintiff, that the deceased was under fifty years of age, at the time of her death, in vigorous health, and accustomed to earn about a dollar per day, by her labor as a seamstress. She left three children, two sons and one daughter, all of them over twenty-one years of age, and living away from their mother. It was shown, that she was in the habit of making articles of clothing and sending them to her children, fropi time to time.

On behalf of the defendant, the conductor and brakeman on the train in question testified, that the deceased carried, a bandbox, bundle, basket and fiower-pot, and that" her father had a carpet-bag, and also that the direction to the passengers to pass into the forward car was made as soon as the train reached Syracuse, where a stoppage was made of some ten or twelve minutes.

The jury found a verdict for the plaintiff for $3500, and the special term denied the motion of the defendant for a new trial. The general term, on appeal, directed a new trial, unless the plaintiff should stipulate to accept a reduction of the verdict. This the plaintiff consented to do, and from the judgment entered accordingly, for $2387.57, the defendant appeals to this court.

It cannot be considered negligence on the part of the person killed, that she attempted to pass from one car to another, in obedience to the orders of the defendant. She was not only directed to go forward into another car, in the night-time, during a storm, and when the train was in motion, but it was necessary for her comfort and convenience that she should do so. The car to which she was directed to go, when the train stopped at Syracuse, wras filled with ^passengers, and the alternative was presented to her of incurring the risk of the transit, or remaining standing, with «u> aged companion, whose strength, it may well be concluded, was unequal to such a position. She had « right to a seat, and it was the duty of the defendant to provide her with one. If, in discharging that duty, they required her to perform an act which was perilous in itself, and in doing which she lost her life, the negligence, if any, which that act involved, should be imputed to the company alone. The rule that contributory negligence will prevent a recovery by the party suffering the injury, ought not to be applied to such a case. It would seem to be manifestly unjust, to characterize as negligence the act of yielding obedience, under such circumstances, to the requirements of the party inflicting the injury, and to hold, as between the parties themselves, that it should deprive the party injured of all legal redress. It would be a novel, as well as a dangerous rule, to hold that a railroad company should enjoy immunity from liability, when the act which occasioned the injury was undertaken under its direction, and was one which the passenger must perform, in order to procure the seat, which the company was bound to furnish.

I admit, that passing from one car to another, in a dark and stormy night, when the train was in motion, incumbered with baggage, and having charge of an aged person,' was an act fraught with .imminent peril, and if done without sufficient reason, one involving great negligence. But, having been undertaken at the request of the company, it is to be regarded as their act, and attempted at their risk. Unless this view of the case is adopted, railroad companies may be' guilty of the grossest wrongs, without incurring liability. In performing their contract, they may require a feeble and inexperienced person to incur fearful risks, and then claim to be without fault in law, on the ground, that the passenger, who may have suffered an injury, was negligent in following their reckless directions. The very statement of such a case suggests the necessity of so administering the law as to obviate so great an evil. *There was no error, therefore, in the gulings of the judge, who presided at the circuit, touching the negligence of the deceased.

There was some slight evidence that the next of kin of the deceased sustained some pecuniary loss by her death. She was, at the time of her death, about fifty years of age, industrious in her habits, and in the enjoyment of robust health. It also appeared, that she left three children living, who were supporting themselves, away from home. She was in constant communication with them, and was in the habit of making and sending to them some articles of clothing. It cannot, therefore, be said that her children had no pecuniary interest in her life, even if that term is used in its most limited signification. The extent of that interest was a question for the jury, and was fairly submitted to them on the evidence.

When we consider the defect which the statute was designed to remedy, it is taking too narrow a view of the matter, to say that the word pecuniary was used in so limited a sense, as to embrace only the loss of money. Such a limitation would, in many cases, render the statute a mere mockery, because it would afford no substantial relief, in the very cases in which it is most needed. The loss of the society of a deceased relative, the injury to the affections of those surviving, cannot be regarded as being within the remedy of the statute, because in no sense can the loss be regarded as pecuniary. But to children, the loss of a parent involves the loss of many other things which this court has heretofore regarded as of a pecuniary character, and as the subjects of consideration by a jury in assessing the damages under the statute. (Tilley v. Hudson River Railroad Co., 24 N. Y. 471.) It is true, that these children were away from home, probably of full age, and not immediately dependent upon their mother for support. But the evidence also shows, that they were not ' beyond the reach of a mother’s care and bounty. Out of her earnings, insignificant as they were proved to be, S^e Pr0V1<^e<^ small articles of clothing *for them, and the jury had a right to find that her death involved them in a pecuniary loss.

The statute under consideration has presented some difficult questions of construction, but the courts have taken a humane view of them, and have endeavored to effectuate what may fairly be presumed to have been the intention of the legislature in providing a remedy unknown to the common law. It would not, therefore, have been proper for the judge to have instructed the jury, as he was requested to do, that the plaintiff was entitled to recover only nominal damages. There is no precise rule which a jury can adopt in estimating such damages. The.question should always be left, as it was in this case, to their judgment upon the whole case, and when the question has been fairly submitted, and the damages are not excessive, their verdict should not be disturbed.

It follows, from these views, that the exceptions to the judge’s charge were not well taken, and the judgment should be affirmed.

Judgment affirmed. 
      
       Railroad Co. v. Barron, 5 Wall. 90.
     