Anderson v. Third Avenue Railroad

9 Daly 487

• Court: New York Court of Common Pleas
• Decided: February 7, 1881
• Status: Published

Opinion

Charles P. Daly, Chief Justice.

It is through the paternal relation, that the plaintiff has a right of action against the defendants, for injuries to his son, arising from their negligence; because he is entitled to the services of his son, during his minority, and an injury to the son which deprives the father of the benefit of the son’s services, is a loss and injury to him. If, in an action brought against the defendants for the son, by his guardian, it has been judicially determined, that the accident which caused the injury, was not owing to any negligence on the part of the son, but was due solely to the negligence of the defendants, there is no reason why that question should be tried over again in the action brought for the loss of the son’s services, as it would involve an inquiry which has been already made and settled, between the party to whom the accident happened and the defendants. In tins action, the plaintiff is limited to the recovery only of such damages as he may have sustained by the loss of his son’s services; and I can see no reason why, to establish his cause of action, he should be required to prove that the accident, which deprived him of his son’s services, was cairsed by the defendant’s negligence, when that fact has been judicially determined against the defendants in the action brought for the benefit of the son. In my opinion, the plaintiff is entitled to give, the judgment in evidence, to establish that the accident which deprived him of his son’s services, was solely from the defendants’ negligence; and if the record shows that it was so determined in that action, that is sufficient proof of the fact in this.

The order, therefore, denying the application to strike out of the complaint the averment of the recovery of the judgment, should be affirmed.

J. F. Daly and Beaoh, J J., concurred.

Order affirmed, with costs.