Allen v. Manhattan Railway Co.

28 Jones & S. 230, 42 N.Y. St. Rep. 227, 60 N.Y. Sup. Ct. 230

• Court: The Superior Court of New York City
• Decided: January 11, 1892
• Status: Published

Opinion

By the Court.—McAdam, J.

The action was brought by the plaintiff to recover his pecuniary loss resulting from an injury done to his wife by the wrongful act of the defendant. On Christmas night, 1888, the plaintiff, his wife and two young nieces started to go from the lower part of the city to plaintiff’s home, near 72d street and 9th avenue. They took a train on defendant’s elevated road and on reaching the station at 72d street and 9th avenue, started to get out. The plaintiff started first, the two little girls following, and Mrs. Allen being last. Before Mrs. Allen could get off, the train started and, as she stood in the open door of the car platform, she was told by the guard to get off. She said, “ How can I when the train is in motion ? ” The guard then said, Get off, I say,” and putting his hand on her back, pushed her. Mrs. Allen was lame, having a stiff knee, and when she was pushed she fell off the platform of the car upon the platform of the station, and the train, which was full of passengers, passed on, leaving Mrs. Allen with the plaintiff and the two little girls on the platform. The result of the fall was a fracture of the scapula of the left shoulder, which never united, and which left her permanently disabled in her left arm and shoulder. The injury is claimed to be incurable, and she is compelled to wear an iron frame about her body to support the shoulder, and even then it is claimed that she can make no exertion without constant pain. It is also claimed that some of the muscles were permanently detached from the shoulder.

The jury having found in favor of the plaintiff, their verdict settles the facts to he as stated. The proofs satisfactorily establish the result reached by the jury; so that we need not trouble ourselves with the conflict in evidence which arose during the trial. The jury brought in a verdict in favor of the plaintiff for three thousand dollars and the defendant claims that the amount is excessive.

It is a recognized rule of law that in actions of this kind the loss of the society and companionship of the wife is an element of damage in addition to the loss of service. Maxon v. Del., Lack. & W. R. R. Co., 48 Hun, 172; Cregin v. The City of Brooklyn, 83 N. Y., 595; 3 Black Comm., 140; Shouler on Husband and Wife, § 143; Stewart on Husband and Wife, § 77; Smith v. St. Joseph, 55 Mo., 456; Brockbank v. Whiteboro R. R. Co., 7 Hurl. & N., 834; Jones v. Utica, etc., R. R. Co., 40 Hun, 349.

The claim comprehends the loss which continues during the life of the wife. Green v. Hudson R. R. Co., 2 Abbott’s Appeals Dec., 277.

The plaintiff’s wife was no doubt permanently injured, and his loss will continue during her life.

In view of the facts, the recovery was not excessive, but moderate. We have examined the various exceptions taken during the trial to the judge’s charge, and to the requests to charge, and find them to he without merit.

It follows that the judgment and order appealed from must he affirmed, with costs.

Freedman, P. J., and Gildersleeve, J., concurred.