Brooks v. . Schwerin

Earl, C. The defendant claims that the complaint ought to have been dismissed on the motion of his counsel, because the undisputed proof showed no negligence on his part, and contributory negligence on the part of the plaintiff. There was evidence tending to show that the plaintiff was returning home from her labor on the evening of April 13, 1865, between half-past seven and nine o’clock, passing along Thirty-second street, going west, and when she reached the south-east corner of Thirty-second street and Broadway, she saw a street railway car coming up Broadway. The car was two or three lengths from the crossing, and, thinking that she could cross the railway track ahead of the.car, she started, and, as she", approached the track, she concluded that, she could not pass before the car, and stopped near the east side of the track, and waited about a minute for. the car to pass. While she was thus waiting, and-just as the carchad passed, and she was about to move on, the defendant came with his horse and wagon up Broadway at the rate of seven or eight miles an hour, and run over her and injured her severely. She testified that, while waiting, she looked both up the" street and down, but that she did not see the defendant’s *347 horse until she was knocked down. The defendant testified that it was quite dark at the time; that he was sitting in his wagon, about fifteen feet from his horse’s head, and that he did not see the plaintiff until she was knocked down ; that the space between the cars and the sidewalk on the east side of Broadway was but nine feet, and that, standing in his wagon he could not see a person in front of his horse. Some of these facts were controverted, but there was some evidence tending to prove them all. And hence, for every purpose upon this appeal, we must assume them to have been established. The parties had equal rights in the street. He had the right to drive upon it and she had the right to cross it, and to stop in it while the car passed in front of her. But both were required to exercise that degree of care and prudence which the circumstances of the case demanded, she to avoid injury to herself, and he to avoid injury to another. (Barker v. Savage, 45 N. Y., 191.) It cannot be said that her negligence was conclusively established. She, saw the car coming at a little distance, and she thought she could pass ahead of the car, She made the effort and found she could not, and then waited briefly for 'the car to pass. She looked up and down the street and saw no wagon approaching, and, as she was about to cross the railway track, was struck and knocked ' down. It is not clear that she did less than any person of ordinary prudence would have done. Whether she was negligent, whether she ought to have attempted to cross ahead of the car, whether she ought to have retreated to the sidewalk when she found she could not pass, whether it was prudent for her to stand in the street while the car passed, after looking up and down the street, and perceiving no danger, and whether under all the circumstances she ought to have perceived the danger, were all questions fairly for the consideration of the jury. Heither can it be said that the evidence conclusively showed -that the defendant was free from negligence. The evening was dark; the defendant could not see ahead of his horse, and yet he was driving at *348 the rate of seven or eight miles an hour over a street crossing where pedestrians were in the habit of passing. Whether the defendant did drive so fast, and whether if he did it was prudent for him to do so in a public street in a dark night, whether it was prudent to drive so fast over a street crossing, and whether the accident would have happened if he had driven slowly and prudently, were all questions for the jury. I am, therefore, of the opinion that the court did not err in refusing to nonsuit the plaintiff, and there only remains to be considered one other point to which our attention has béen called. At common law when a married woman was injured in her person, she was joined with her husband in an action for the injury, and in such action nothing could be recovered for loss of service or for the expenses to which the husband had been subjected in taking care of and curing her. For such loss of service and expenses the husband alone could sue. (1 Chitty PL, 84.) It is. now' provided, by'section 2 of chapter 90' of the Laws of 1860, that a married woman may “ carry on any trade or business, and perform any labor or services, on her sole and separate account, and the earnings of any married woman from her trade, business, labor or services shall be her sole and separate property, and may be used or invested in her own name.” ’ This statute effects a radical change of the common law which gave the husband the right to the labor, services and earnings of his wife. The services of the wife in the household in the discharge of her domestic duties still belong to the husband, and in rendering such service she still bears to him the common-law relation. Só far as she is injured so. as to be disabled to perform such service for her husband, the loss is' his and not hers ; and for such loss of service he, and not she, can recover of the wrongdoer. But when she labors for another, her service no longer belongs to her husband, and whatever she earns in such service belongs to her as if she were a feme sole, and, so far as she is disabled to perform such service by any injury to her person, she can in her own name recover a compensation against *349 the wrong-doer for such disability as one of the consequences of the injury, under the seventh section of the same act, which provides that “ any married woman may bring and maintain an action in her own name, for damages against any person or body corporate, for any injury to her person or character, the same as if she were sole,” and the money recovered shall be her sole and separate property. On the trial of this action it appeared that the plaintiff, before the injury, took charge of her family, and also that she was working out by the day, and earning ten shillings a day. To the proof of these facts the defendant objected on the ground that her time and services belonged to her husband and could not form ground of damages in the action. The court overruled the objection and defendant excepted. The defendant also excepted to the refusal of the court to charge as requested by him, “ That the plaintiff cannot recover for the value of her time and services while she was disabled; such services and time belong, in law, to the husband.” The rulings of the court, in receiving the evidence and refusing to charge as requested, were proper within the principles of law above adverted to. If the defendant had requested the court to charge that the plaintiff could not recover for the loss of service to her husband in his household in the discharge of her domestic duties, the request could not properly have been refused. But the request was broader, and proceeded upon the idea that all her time and services belonged to her husband, and that she could not recover anything for the value of her time, or for the loss of any service while she was disabled. She was earning in an humble capacity ten shillings a day, and so far as she was disatiled to earn this sum, the loss was hers, and the jury had the right to take it into account in estimating her damages. Suppose she had been a teacher in a school, or a clerk in a store, earning a salary of-$1,000 per year, and she had been disabled one whole year, could she not have shown the loss of her salary as one of the facts to be considered by the jury in estimating her damage ? She certainly conld if she had been a feme *350 sole, and under the present statutes she had the same right being a married woman. , . There is nothing in conflict with these views(in,the case of Filer v. New York Central Railroad Co. (49 N. Y., 47). There was no claim in that case that the plaintiff, a married woman, was at the time of the injury carrying on any business or trade, or engaged in any service on her sole and separate account, or that she was earning any money, which," under the laws of this State, she could claim as her own. I am, therefore, of opinion that the judgment should be affirmed, with costs.