Geary v. Metropolitan Street Railway Co. , 77 N.Y.S. 54 ( 1902 )

Laughlin, J.:

This is an action under the statute to recover for the death of John Geary, alleged to have been caused by the negligence of the defendant. The decedent was a member ' of the fire department of the city of New York assigned to duty with Hook and Ladder No. 2 at Fiftieth street and Lexington avenue. On the 21st day of February, 1901, about midday, while the hook and ladder truck was passing westerly on Fifty-third street crossing Madison avenue in response to an alarm of fire, the truck was struck by one of the defendant’s south-bound Madison avenue cars. The decedent, who was riding on the southerly side of the truck, jumped down to escape, but was overtaken by the truck, which was precipitated upon him, inflicting injuries from which he died.

It is not contended that the evidence was insufficient to take the ease to the jury; but it is claimed that the verdict is against the weight of evidence. The decedent was not the driver of the truck. He was riding about the middle of the truck, which was half way over the tracks before it was struck by the car. When he discovered that the truck would not likely clear the track before the car came along, he jumped for safety. It is not seriously contended that he was guilty of contributory negligence in remaining on the truck up to that time, and the jury were, we think, ■clearly justified in finding that he was free from contributory negligence.

There is, as is usual in these cases, great conflict in the testimony as to the manner in which the accident occurred. There is testimony which, if believed by the jury, and from their verdict it must be assumed that it was accepted as true, warranting the finding that if the motorman had had his car under proper control in approaching the crossing of Fifty-third street, or had been keeping a proper lookout, he would have discovered the approach of the fire truck in time to avoid the collision, and that the circumstances were such that he should have permitted it to pass first.

We have carefully weighed the evidence and are not convinced that it preponderates in favor of the defendant upon this main question, and, therefore, we are not authorized to disturb the verdict upon the ground that it is against the weight of evidence.

It is further contended that there are prejudicial errors in the reception of evidence and in the instructions to the jury upon the question of damages.

The decedent was earning a salary of $1,400 per annum. It appeared that under the pension law provisions of the Greater New York charter (Laws of 1897, chap. 378, § 789 et seq.) the decedent’s widow was receiving $700 per annum. The court instructed the jury that in assessing the damages they should not take into consideration this pension which the widow was receiving, and the defendant excepted. We think the instruction was proper. The duty of the jury under the statute was to ascertain the pecuniary loss which the widow and children sustained by the death of the husband and father, and any benefits which they received by way of insurance or pension are not to be offset or deducted. (S. & R. Neg. [5th ed.] § 765; Kellogg v. N. Y. C. & H. R. R. R. Co., 79 N. Y. 72; Pittsburg, C. & St. L. Ry. Co. v. Thompson, 56 Inn. 138; Terry v. Jewett, 78 N. Y. 338; Briggs v. N. Y. C. & II R. R. R. Co., 72 id. 26.) The inquiry is what amount of money would they have received from or through him had he lived, and it in no manner involves the consideration of what they have received on account of his death.

The plaintiff was permitted to show, under the defendant’s objection and exception as irrelevant, immaterial and incompetent, the different grades of advancement above that of fireman of the first grade, which ivas the position occupied by the decedent, and the salaries of those positions to and including the chief of the department at a salary of $6,000 per annum. The decedent was thirty-two years of age, and he had been married six and a half years and left a widow twenty-five years of age and three children, the eldest being five. It appeared that he was a strong, healthy man. In the short time he had been connected with the department he had advanced four grades. Being in the department in these circumstances, it was reasonable to suppose that a young man of family and steady habits would remain, and the jury had a right to consider his prospect of advancement and the probability of his attaining a higher position and earning a greater salary. There is considerably more basis for these considerations and far less speculation involved than is sanctioned by the authorities which permit a jury to consider the possibility of a father or mother inheriting from a son, modified by the chances of his surviving them, or his becoming married and having a family to support and. to inherit his property. (Johnson v. Long Island R. R. Co., 80 Hun, 306 ; Benson v. Corbin, 145 N. Y. 351; Birkett v. Knickerbocker Ice Co., 110 id. 504; Houghkirk v. President, etc., D. & H. C. Co., 92 id. 219.) It does not follow, however, that the salaries which the higher positions command may be shown affirmatively. Any advancement required that a competitive civil service examination be passed. Other qualifications than those essential to the position held by the decedent would be required to fill the advanced positions, and manifestly some of them would require a high degree of executive ability. There is not sufficient probability that the decedent would have advanced to these positions to justify the reception of evidence showing the salaries. Evidence of specific salaries of higher positions would be misleading. It would unduly emphasize the right of the jury to consider the question as to whether the decedent would likely ever earn a larger salary or receive greater compensation, and tend to make them regard as probable what is at most only possible. In such cases the jury may consider the probability of the decedent’s earning a greater income if he had lived, but that determination of this question should be made on existing facts and circumstances. (Brown v. C., R. I. & P. R. Co., 64 Iowa 652.) The minds of the jurors should not be confused by evidence as to the salaries of specific higher positions, though in the same service.

This evidence was incompetent, and we regard its reception as prejudicial error.

The judgment and order should, therefore, be reversed and new-trial ordered, with costs to the appellant to abide the event.

Ingraham, McLaughlin and Hatch, JJ., concurred; O’Brien, J., dissented.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.