Lockwood v. New York, Lake Erie & Western Railroad

Earl, J.

The intestate at the time of his death was about sixty-eight years old, and he left seven children, all adults, and all but two of them living away from his home. The children living away from him received nothing from him by way of support, but were supporting themselves, and had been for years. One daughter, who was unmarried, lived with him at the time of his death and did household work for him, receiving nothing for her work, and paying nothing for her board. A son who was married also lived and boarded with him, but worked for himself and used his own earnings. The plaintiff, against the objections of the defendant, was permitted to prove that the children of the deceased had no property of their own, and that his daughter who lived with him was afflicted with some disease, and that, "therefore, she was not able to work as she otherwise would have been. Defendant’s counsel requested the trial judge to charge as follows : “ Where the children are of full age, and living away from the home of the deceased and are supporting themselves, no such pecuniary loss has been sustained by them as can be recovered for in this action. If the jury find from the evidence that such a state of facts existed here, they cannot include in their award any pecuniary damages resulting to them ; ” and he refused so to charge.

The courts have found it impossible to lay down any definite guide for the jury in estimating damages under the act in question, and we will not attempt it now. Mo further discussion of the subject is required than may be found in the numerous cases under this statute contained in the reports of this State. Whatever the rule may be in other States, there are many cases in this which in principle sustain the rulings of the trial judge in receiving the evidence objected to, and in refusing to charge as requested. We cite a few of them : Tilley v. Hudson River Railroad Company (24 N. Y. 471), S. C. (29 id. 252), McIntyre v. N. Y. C. R. R. Co. (37 id. 287), Ihl v. Forty-second Street, etc., R. R. Co. (47 id. 317), Bierbauer v. N. Y. C. & H. R. R. R. Co. (15 Hun, 559), S.C. (77 N. Y. 588), Harlinger v. N. Y. C. & H. R. R. R. Co. (15 Weekly Dig. 392), S. C. (2 N. Y. 661), Houghkirk v. D. & H. Canal Co. (92 id. 219).

In but few cases arising under this act is the plaintiff able to show direct, specific pecuniary loss suffered by the next of kin from -the death, and generally the basis for the allowance of damages has to be found in proof of the character, qualities, capacity and condition of the deceased, and in the age, sex, circumstancés and condition of the next of kin. The proof may be unsatisfactory, and the damages may be quite uncertain and contingent, yet the jurors in each case must take the elements thus furnished and make the best estimate of damages they can. There seems to be no other mode of administering the statute referred to, and protection against excessive damages must be found in the power of courts in some of the modes allowed by law to revise or set aside the verdicts of juries.

The judgment should be affirmed.

All concur.

Judgment affirmed.