Opinion
May, 1909.
Frank V. Johnson (Harry S. Austin, of counsel), for appellant.
Gainsburg Solomon (I. Gainsburg, of counsel), for respondent.
The plaintiff is the father of a boy who was injured through defendant's negligence. The testimony showed that the boy's toes were broken and lacerated; that the injury had healed with the exception of a scar on the toe and some pain when the toe is pressed. There is no evidence of loss of services in the past, nor could there well be, in view of the age of the boy; and the injury is not one which could reasonably be held to deprive the plaintiff of any future services. The only testimony of expense to the plaintiff is the physician's testimony that his services were reasonably worth sixty dollars. The judge charged the jury: "On the question of damages there is evidence to show that he incurred a doctor's bill of $60. The plaintiff sues here for $250. If you come to the conclusion that he is entitled to recover and in no way contributed to this accident, you can compensate him up to the sum of $250 for the loss of society that a boy of seven years can give to his father, and also the companionship that a boy of seven years can give to his father."
In Barnes v. Keene, 132 N.Y. 13, at page 16, the court said: "The rule governing the assessment of damages in such a case as this is compensation for pecuniary loss."
The trial justice has submitted the question to the jury on the theory that the assessment of damages might also include sentimental loss.
The jury, on the theory of pecuniary loss, could not have found damages of over sixty dollars; and the order denying the motion to reduce the verdict to sixty dollars should be reversed, and the judgment reduced to sixty dollars damages and approximate costs, and, as so modified, affirmed, without costs to either party on this appeal.
DAYTON and SEABURY, JJ., concur.
Order reversed and judgment reduced to sixty dollars damages and appropriate costs, and, as so modified, affirmed, without costs to either party on this appeal.