Stevens v. Union Railway Co.

75 A.D. 602, 78 N.Y.S. 624

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1902
• Status: Published

Opinions

O’Brien, J.:

The action is to recover damages for the death of plaintiff’s husband, who was killed opposite the entrance to the elevated railroad on One Hundred and Thirty-eighth street between Willis and Alexander avenues on the early morning of September 9, 1901, by an east-bound trolley car of the defendant as he was proceeding to the south side of the street after having alighted from a westbound car which stopped at that point for the purpose of transferring passengers to the elevated railroad.

Although the deceased, as testified, left the west-bound car before it had quite come to a stop, that car did stop opposite the entrance of the elevated station and passengers alighted therefrom, and the motorman of the east-bound car admitted that he had observed that car coming to a stop and had slackened his speed and was half clear of the car when he released the power and then it was too late to avoid running over the plaintiff’s intestate who came from directly behind the west-bound car and had reached the north rail of the east-bound track. It was further testified that the east-bound car approached without warning and did not stop until it had passed some forty or forty-five feet beyond the place where the man was crossing. Upon these facts we think the case of Pelletreau v. Met. St. Ry. Co. (74 App. Div. 195) is controlling. In both cases the accident occurred upon a street which was much frequented by pedestrians, and the evidence here as in the Pelletfrecm case tended to show that when passing behind one car which had stopped at the crossing, the passenger was struck by a car coming on the other track in the opposite direction and the motorman failed to slacken its speed or to give warning of its approach.

The damages here awarded, however, we think are excessive. The deceased was thirty-five years of age and received a salary of twelve dollars a week as the driver of a milk wagon, and left besides his widow two daughters aged nine and twelve years respectively. Under the circumstances we think that for the pecuniary loss, as shown by the evidence, a verdict of $10,000 would be fully compensatory. Our conclusion, therefore, is that upon the plaintiff giving a stipulation reducing the verdict to that amount the judgment as modified should be affirmed, without costs: and upon failure to give such a stipulation, the judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Patterson and Laughlin, JJ., concurred; Van Brunt, P. J., and McLaughlin, J., dissented.