
    Anna K. Ericius and Frank Zimmermann, as Executors, etc., of Moritz Ahlemann Ericius, Deceased, Respondents, v. The Brooklyn Heights Railroad Company, Appellant.
    ■ Negligence—a plaintiff’s negligence must, to be a defense, contribute to the accident—proof of the amount expended for a decedents household.
    
    In an action brought to recover damages resulting from the death of the plaintiffs testator caused by the alleged negligence of the defendant, the court may properly refuse to charge" that if the deceased “failed in even the slightest degree in the exercise of the prudence which, as an ordinarily prudent man, he should have exercised under the circumstances, he cannot recover,” as such request'omitted an essential element, viz., that the negligence must have contributed to the accident.
    
      Semble, that in such an action evidence of the amount expended by the deceased in the support of his household, and of the amount which his next of kin customarily received from him, is competent, on the question of damages, where there is no proof that the deceased, who at the time of his death was a member of a firm of practicing physicians and left no estate, was possessed of invested capital or of any resources beyond his personal earnings.
    Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 17th day of January, 1901, upon the verdict of a jury for $15,000, and also from an order entered in said clerk’s office on the 23d day of January, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    
      John L. Wells, for the appellant.
    
      Stephen O. Baldwin, for the respondents.
   Hirsohberg, J.:

The evidence presented to the jury two conflicting theories of the happening of the accident. On behalf of the plaintiffs there was evidence tending to establish that after the gong had sounded to start the train across the bridge, but before the train had actually started, the plaintiffs’ decedent attempted to board one of the cars ; that while he was in the act of doing so, and after he had stepped upon the car platform, the guard or conductor shut the gate in such, a way as to imprison his left hand, and the train then starting he-was dragged some fifteen or twenty feet toward a railing upon the= bridge platform, he shouting to the guard to let go ” and was crushed to death between such railing and the car. On behalf of the defendant, however, evidence was given tending to show that the gate was. securely closed and the train started before the deceased attempted, to get on board; that while the train was in motion he seized a. handrail on the edge of the body of the car and endeavored in some way to secure a footing upon the car platform, and in spite of the cries of the guard to him to let go ” continued to hold on until he reached the railing where he met his death.

• The defendant presented many more witnesses than the plaintiffs,, but the case is not one in which an appellate court would be justified in reversing the finding of the jury. The defendant’s witnesses are= not in accord-with each other upon important matters connected with the occurrence, while the condition of the left hand of the-deceased, from-which the flesh was entirely torn away from the wrist-to the fingers, may well be regarded as furnishing corroborative evidence of the plaintiffs’ theory that the deceased was killed because; he could not, rather than because he would not, let go.

Nor can if be said that upon the adoption of the plaintiffs’ theory " of the facts the jury could not lawfully reach the conclusion that. the defendant"was" negligent. The cases relied upon by the appel- : "láht are only applicable to the facts as claimed by it, viz., that the-act of the deceased was the voluntary assumption of a position of obvious risk stubbornly maintained against the protests of the train- . man arid in the presence of certain danger. In all of these cases-the passenger was injured or killed while attempting to board a moving train. In neither of the two on which the appellant lays-chief stress was the deceased exposed to peril by any act of the defendant. In Robinson v. Manhattan Railway Co. (5 Misc. Rep 209) the decision Was based on the proposition that one who voluntarily assumes a position of danger, the hazards of which he fully appreciates,"'cannot recover for an injury from a peril incident to-the position. The deceased was" held chargeable with contributory-negligence in boarding an elevated train while the gate was closing, and the train moving, and in persisting in. maintaining the precarious position thus obtained against every effort to remove him. So in Solomon v. Manhattan, R. Co. (103 N. Y. 437) the intestate was killed while attempting to board a train in motion, and it was held that the presumption of negligence attaching to that fact was- not rebutted by the acquiescence of the trainmen in the passenger’s act. But in none of the cases cited in the learned counsel’s brief is it held that to shut the gate at such a time and in such a manner as to imprison the body of a passenger who is endeavoring to enter the train before it has started, and to refuse to open the gate and release him from his peril, or to stop or to attempt to stop the car before it reaches a point where death is certain, is so far within the bounds of ordinary care and prudence that to submit to a jury the question of a defendant’s negligence' as predicated thereon would be erroneous.

' Some questions are presented in reference to the rulings of the learned trial justice. It is claimed that he erred in permitting proof of the amount expended by the deceased in the support of his household, inasmuch as mere expenditure is no necessary proof of income or of earning capacity, but maybe an improvident waste of capital. The deceased was a physician engaged in partnership in the practice of his profession at the time of his death, and the defendant proved that pursuant to a provision in the partnership agreement the plaintiff Anna K. Ericius, his widow, had been receiving since her husband’s death the income of a half interest, amounting to $175 monthly. There was no proof that the deceased was possessed of invested capital or of any resources beyond his personal earnings. It does affirmatively appear that he left no estate. I cannot see why proof of the amount which his next of kin customarily received from him should not be competent under the circumstances as bearing upon the extent of their financial loss, but if such evidence be open to doubt the exceptions here are not available as.in almost, if not quite every instance, they were taken after the answer to a question not objected to, or appear in connection with the denial of a motion to strike out evidence received without objection. In no instance was the distinct ground of objection now raised pointed out upon the trial, nor was any exception taken to the charge on the question of damages.

The court was asked by defendant’s counsel to charge the jury “ that if this plaintiff’s intestate failed in even the slightest degree in the exercise of the prudence which, as an ordinarily prudent man, he should have exercised under the circumstances, he cannot recover.” The refusal to charge this request was not error because an essential element is lacking, viz., that the slight negligence which will bar a recovery must be such as contributes to the accident.

The damages recovered are large. The deceased left his widow, two daughters and a grandchild, the daughter of a deceased son. In view of the extent of income derived- from his practice, and the amount of his annual contributions to the support of- his family, which in the condition of the proof may fairly be presumed to have been all earned by himself, it cannot be said that the damages are excessive.

Judgment and order should be affirmed.

Goodrich, P. J., however, being in favor of a reduction of the amount of recovery.

Judgment and order unanimously affirmed, with costs. 
      
      
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