Heater v. Delaware Lackawanna & Western Railroad , 85 N.Y.S. 524 ( 1904 )

Smith, J.:

' Defendant strenuously insists that this complaint should have been dismissed for the contributory negligence of the plaintiff. The horse was being driven by her husband, whose negligence confessedly is not imputable to her. She was riding upon his left, with the care of a fifteen months old child, in a stormy and sleety night in November. Defendant’s train came from her right without warning by bell or whistle. Both she and her husband were unfamiliar with this crossing, neither of them having ever passed it until the morning of the accident. It clearly cannot be said as a matter of law that the plaintiff was guilty of contributory negligence in failing to look around her husband to observe the approach of the train, which could only be seen for about sixty feet before the track was reached. If this were an action to recover for the death of the husband, who was driving, where his negligence was the question involved, a different rule might apply.

We think this judgment, however, must be reversed because of errors committed upon the trial. It is probably true that the plaintiff can recover for any liability she has incurred for physicians’ services made reasonably necessary by the injuries which her child sustained, even though she may not have paid those claims. Where, however, the claims have not been paid, and no demand appears to have been made for the payment of those liabilities, the proof should he very clear as to the nature and extent of those liabilities before the defendant should be called upon to pay therefor. Neither the nature of the services rendered by some of the different physicians employed, nor the extent of their services, is shown with any sufficient clearness upon which can be based a judgment for liability incurred therefor. Nor has the value of such services been adequately proved. The only evidence as to value is the evidence of a country physician, who has based an estimate without accurate knowledge either of the nature or extent of the services rendered, and as to some of the special services claimed to have been rendered, without adequate knowledge of the value of such services. Plaintiff has here recovered for the services of one physician employed by the defendants for whose services no liability whatever is shown against the plaintiff. Plaintiff has recovered for services of experts for work done in public hospitals known, as shown by the evidence, as free hospitals. Without specifying in detail defendant’s objections to evidence as to the value of the services rendered which we deem to have been improperly overruled by the court, it is sufficient to say that we find a proper foundation for a small part only of the judgment which has been rendered in this action. -

At the end of the charge the plaintiff’s counsel asked the court to charge that they might properly estimate the time and award a reasonable sum for extra nursing and care required by the child. To this the court answered, “Yes,” and the defendant excepted. There is no proof of any liability incurred for nursing of the child,.and even if "the mother could recover for extra time and nursing required of her, there is no proof of value of such time and nursing. There is no evidence upon which such an estimate of damage could properly be left to the jury, and it was error to allow them thus to increase the verdict as they might choose upon mere speculation.

For these reasons the judgment must be reversed and new. trial granted.

All concurred; Houghton, J., not sitting.

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