Coghlan v. Third Avenue Railroad

Gildersleeve, J. The action is brought by the father, as administrator, under the statute (Code, §§ 1902, 1904) to recover damages for the death of his infant daughter,- caused by defendant’s negligence. The jury was charged as follows: “ There can be no recovery in this case whatever for any loss of earnings which the child might have made while she was an infant, and until she had reached the age of twenty-one years. They are the subject of a. recovery in a separate action on the part of the father of the child.” The jury brought in a verdict for six cents damages in favor of plaintiff, who now makes this motion for a new trial. In the case of Watson v. Brooklyn City Railroad Company (affirmed, 103 N. Y. 687, without opinion), an action brought under the statute to recover damages for the death of an infant son, resulting from injuries received through the negligence of defendant, the General Term of the City Court of Brooklyn held that the entire damages could be recovered in that action, one in favor of the father, and the other in faVor of the administrator for [678] the benefit of the next of kin. The pleadings in that action were identical with those in the case at bar, and, I. think, the case is an authority in support of plaintiff’s' claim on this motion. The case of Keenan v. Brooklyn City Railroad Company, 145 N. Y. 348, also supports the plaintiff’s position. The court there say that “ the jury, in determining the amount of damages that should be" awarded, was in duty bound to consider-the various elements of pecuniary loss sustained by the father; first, the probable earnings of the son during his minority, over and above .his support, clothing and education; next, the probability of his living and becoming of sufficient ability to support his father, in case of his becoming aged, poor and unable to support himself;; and then the jury had the right to consider the amount he would have brought to his next bf kin while living, and their prospect of inheriting from him áfter death.” Where' the deceased leaves no-widow or children, the father, as next, of "kin, would be entitled to the whole recovery in an action under- the statute. "Code, § 2732; subd. 7.' Also in an action for loss of services, during minority, he would be entitled to the whole recovery. Therefore, in such case, where the father is the exclusive beneficiary, the entire pecuniary loss may be recovered in one "action. McGovern v. R. R. Co., 67 N. Y. 418. In the case at bar, it must" be said that the recovery being, exclusively for the benefit of'the father, the loss of service during minority and-any other pecuniary loss that could be established constitute substantially the same claim. And, in any event, it must be held that the plaintiff herein has ■elected to proceed for and recover his whole damage, including the loss of services of his child during minority,'and that the recovery will be a bar to an action by the father as such, assuming that he has a'cause of action independent of the statute. ■ See McGovern v. R. R. Co., supra; Hussner v. R. R. Co., 114 N. Y. 433-38. The jury should have taken into consideration, in estimating-the pecuniary loss, the probable earnings- of the child during minority, over and above her support, clothing and education. It was, therefore, error to charge the request above set forth, and for this reason the motion for a new trial should be granted. Under the ' circumstances, no costs are awarded.. Motion granted, without cost's. [679] MEMORANDA OF CAUSES NOT REPORTED IN FULL,