McIntyre v. . New York Central R.R. Co.

Upon the trial of this action the following facts appeared: On the 14th day of 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 defendant 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 next 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 forward; go forward, if you want seats." Some of the passengers *Page 288 then went forward while the cars were in motion, and among them was 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 gave a verdict for the plaintiff, finding his damages at $3,500, and on appeal to the General Term, that court ordered a new trial unless the plaintiff would remit $2,000 of the verdict and leave it to stand for the sum of $1,500, which the plaintiff did, and judgment was entered for the latter sum, with interest, from which judgment, as so modified and entered, the defendant appeals to this court. 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 directions of a man appearing to be in his *Page 289 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 the 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 R.R. 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 resulting from such death. They are not tied down to any precise rule within the limit of the statute, as to amount, and the species of *Page 290 injury sustained, the matter is to be submitted to their sound judgment and sense of justice. They must be satisfied that pecuniary injuries 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 counsel 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 the case of Clark v. Vorce (15 Wend. 193), the judge committed no error in allowing the notes of the testimony of the witness Seely (who had in the meantime *Page 291 died), 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 defendant, 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 he 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 down at the time, contain his very words, and all his words." In Huff v. Bennett (2 Seld. 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 be 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 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 *Page 292 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 be 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.