#### Isabella Cumming, Pl’ff and Resp’t, *v.*The Brooklyn City R. R. Co., Def’t and App’lt.

*(Supreme Court, General Term, Second Department,*

*Filed May 13,1889.)*

1. Negligence—Railroad—Acctoent at crossing—Competency of evidence.

It is competent in an action for negligence to prove the situation of the parties and the circumstances surrounding the transactions, and, in the case at bar, it was competent to show that the railroad was not fenced, that no flagman was placed at the crossing where the accident occurred, and that there was no gate there, although the company was not required by law to fence their tracks, keep a flagman at the crossing or erect a gate there, and, although the failure of the company to erect such fence at the crossing, was not negligence on the part of the company.

*2.*Same—Measure of damages.

Where a child had already secured $10,000 damages, a verdict in favor of her mother for $5,000 will not be set aside as the' result of prejudice, when the jury was authorized to consider not only the damage for loss of service, but, in addition, the extra care and expense the plaintiff was put to,

3. Same.

Where a suit is commenced by the mother of the child injured for loss of service, the child having already recovered a large verdict for damages in its own riglit, although, as touching the question of the mother’s damages, the rule is that, as between the mother and child, resort may be had to the *719child’s property before the mother will be compelled, by law, to support the child, yet the jury may consider not only the amount the child might be able to earn over and above'the expense of her board, clothing and education, but also the extra care and expense that had been imposed upon the plaintiff through the fault of the defendant.

*Morris & Whitehouse,*for app’lt; *Carpenter & Roderick,*for resp’t.

Pratt, J,

It is competent in an action of negligence to prove the situation of the parties and the circumstances surrounding the transaction.

It was here proper to show that the railroad was not fenced and that no flagman was placed at the crossing where the child was injured.

The effect to be given to such evidence is another question upon which the trial judge will give proper instructions.

The judge did charge upon request of the defendant that the law did not require defendant to have gates or flagmen nt Thirty-ninth street on the occasion that the child was injured, also that defendant was not required to blow a whistle or ring a bell, in fact, the court below charged every material request in favor of the defendant.

We cannot find any error on the admission or exclusion of evidence sufficient to warrant setting aside the verdict.

The only point which seems doubtful is upon the question of the amount of damages.

The child had already recovered damages to the amount of $10,000 so that the probability of the plaintiff ever being -called upon for her support was very slight.

The rule seems to be well settled that as between the mother and child resort may be had to the child’s property before the mother will be compelled by law to support the child. *Cuming*v. *Brooklyn City Railroad,*109 N. Y., 95; 14 N. Y. State Rep., 788.

The jury therefore regarded the sum of $,5000 as the pecuniary loss the plaintiff has sustained by reason of the disability consequent upon the injuries to the child.

Although the action is called and is in form one for loss of service, yet the jury were authorized to consider the pecuniary loss sustained by the plaintiff by reason of the injury. They were not confined to the mere amount the child would be able to earn over and above the expense of her board, clothing and eduction, but could consider the extra care and expense that had been imposed upon the plaintiff through the fault" of the defendant.

We cannot find in the amount of the verdict any evidence of passion or prejudice on the part of the jury.

Judgment affirmed, with costs.

Barnard, P. J., concurs.