Opinion
April Term, 1900.
Grant C. Fox, for the appellant.
Louis Steckler, for the respondent.
On the 13th of October, 1897, the plaintiff's daughter, then twelve years of age, while crossing one of the public streets of the city of New York, was run over and injured by a team of horses attached to a heavy wagon belonging to the defendant and driven by one of its servants. Her injuries consisted of a fracture of the right arm, a contusion of the right thigh and cuts about the face and fingers. She was taken to a hospital where she remained for several weeks, and according to testimony offered on the part of the plaintiff she was — subsequent to her removal from the hospital — attended by a physician for about a year, and at the time of the trial she had not entirely recovered. It also appeared that the plaintiff had paid between $225 and $230 for medical services and between $30 and $40 for medicines. This action was brought to recover for the loss of her services and for the money expended. The plaintiff had a verdict for $400 and from the judgment entered thereon the defendant has appealed. It attacks the judgment upon two grounds: (1) Because the court refused to dismiss the complaint on the ground of plaintiff's contributory negligence. (2) For alleged errors in the charge and refusal to charge.
As to the first claim, we are of the opinion that the motion was properly denied. The question of the contributory negligence of the plaintiff's daughter, under all of the facts presented, was clearly one for the jury, as was also the question of the defendant's negligence.
As to the second error alleged, we are of the opinion that it requires a reversal of the judgment.
The court, in submitting the case to the jury, charged that if the jury reached the conclusion that the plaintiff was entitled to recover, it could award "damages for loss of services of a child up to the time of the trial, for loss of prospective services during the period of her minority and for medical expenses actually and necessarily incurred by reason of the injury." An exception was taken by the defendant to so much of this portion of the charge as permitted the jury to award damages "for future prospective losses," and in connection with the exception, defendant's counsel requested the court to charge "that the evidence is insufficient to justify the jury in awarding anything by way of compensation for loss by the plaintiff of future or prospective services of his child;" but the court declined to charge further than it had already charged on that subject, and an exception was taken by the defendant. The charge was erroneous, and the defendant was entitled to have the jury instructed in accordance with its request.
There was absolutely no evidence, so far as appears from the record before us, showing or tending to show, that the injuries sustained by the plaintiff's daughter were of a permanent character, or that the plaintiff in the future, by reason of such injuries, would be deprived of her services to the slightest extent. It is true that some testimony was given to the effect that her right leg was about one-half an inch shorter than the left one, but there was no evidence which would have justified the jury in finding that the shortness was due to the injuries referred to in the complaint, or would interfere with her rendering service in any way or to any extent. The court was also requested to charge that the plaintiff's daughter, at the time of the accident, was sui juris. This request was refused, and in this we think the court erred. She was at the time twelve years of age, of ordinary intelligence, and in law was sui juris. ( Tucker v. N.Y.C. H.R.R.R. Co., 124 N.Y. 308.)
The verdict was a small one; but we are unable to say, by reason of the errors committed, that the defendant was not prejudiced by them.
The judgment and order, therefore, must be reversed and a new trial ordered, with costs to the appellant to abide the ovent.
VAN BRUNT, P.J., RUMSEY, PATTERSON and O'BRIEN, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.