The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-06-05
FoRTiET JUDICIAL DECISIONS.

Ma prouced by the careossness of persons in the
lzpIoy Of the defendants. The action Il brought
|ndsr tia statute Of lSA7. The child was six or
sess sss Sc was sn 70 ts
ed before night. The evidence shows that the car
Fas driven faster than ordinary; that immediately
preceding the accident the driver of the car was
Joking in direction different from that in which
2 was going, and that II he had noticed the child
hen the Witnesses did, the accident might have
Pen avoided. Evidence on the part of the defence
les onered TO explain or excuse any apparent neg
|gence on the part Of the driver. The evidence on
ctory, and was submitted by the Judge to the jury
v their decision, with proper instructions a. to
Re eject Of negligence on the part of the driver as
leu rs on the part Of the child In regard to the
etendanfs. there can be no doubt that the decision
jury as to the negligence of the driver is con-
alsaye upon that point. In regard to the child,
$50, think the same rule must be recognized.
mere are cases where permitting very young cniid
be In the streets without an attendans Is OF
tion Of this kind; but these cases are OF children
f6ch younger than this one; and although there
lay be negligence in permitting such child to be
lone in the streets Of city, unattended still, Of
n age, am not prepared to say that. es matter Of
|w, such negligence Is to be Presumed. On the
|ntrary, think 1t is properly 10 be left to the jury
say whether, under the peculiar circumstances Of
|ch case, a child permitted to 60 through the
|reets at such an age was or was not possessed Of
|cidents, to which she might be exposed in cror
8 the streets Of the city. The defendants r. .,
|: nonsuit on this ground and also for y owed
evidence any pecuniary DAMAGE VT ch Ae N %ams
negligence, because that was oenled "a as ~. 70
|.use, at any rate, there Nigh .of OF damage, be-
neither the jury might - DC nomiH 9h "ama s%a
ioof Of damage, wiD be Considered ' ON another
kssS a. : witness At fol. Al, question was
i front Of Tho ;, whether there were any guards
nicn .s sae .efendants' counsel excepted. Where
"a 4t% IN was the negligence Of the defendants
~, cir servants, 1t certainly was admissible to
~. Ire whether the construction Of the car was
-ch as to tend to occasion the accident. II the
bar had no brakes by which it could be stopped,
/ might be shown as evidence Of carelessness II
=, had no guards, and If the use of guards
could have prevented it, such evidence was pro-
ilerly laid before the jury for their constellation.
g IL said that the complaint did not warrant such
II Inquiry, bu. the complaint did charge the negli
renee either On the defendants or their agents. and
ehongh that negligence, as proven, mainly con-
Secd IN the acts OF the driver still there was ample
loom under that charge to add any facts of negli-
pence on the part Of the defendants III the cOnstruc
Zion Of their cars which would have aided in causing
uch injury. The third point Of the defendants is,
hat the Judge erred in charging the jury "that the
plaintiff could recover whatever pecuniary loss the
pext Of kin 1.-THE mother) may be supposed to incur
b consequence of the loss of the child" This was
qualified by adding, that the jury were to give what
hey should deem fair and just with reference to the
RecuniaTy injury resulting from the DEATH The
Hdgc also excluded Administrations arising from
5he suferings Of the child, or the anguish Of the
parent, and confined the rule Of damages exclu-
lively to naturalization for pecuniary loss. The
bets under which the recovery III this action is
bought are Sep lS47, p. 575, and Sep. 1S49, p Ss8.
They provide that the action may be maintained
Ind damages recovered whenever case occurs
|M which, II death had not ensued, the injured
A. aipfaf ma Tyl,o
principle Of liability by this section is made the
nne as il the injured party had survived acct
aent, and had brought an action for the re-
Foyery Of damages for such injury. In such an
hoelon by the injured party it would not for mo-
nent be pretended that it would be necessary for
recovery to show that any actual pecnniary loss
bhOuld be proven. On the contrary, the mere proof
f the injury and that it was occasoned by the de-
endants' negligence, would BIO sufficient to sustain
> verdict for such damages as q jury might award.
Abe second section Of the statute as amended limits
he recovery to IS 600, and provides that the jury
nay give such damages % they may deem fair and
injuries resulting from such DEATH to the wife and
next of kin of the deceased person." cannot sup
pose that the Legislature intended to conine the
damages in such case to proof OF actual pecuniary
ses. Such supposition would render the law nu-
gatory. The statute was intended to give damages
or prospective losses, and not for what could DO
proven; and TO require proof Of such loss would be
perely to obtain the opinion of witnesses in such
of he opinion that such was not the intent of the
ta4ute but that the rule in the act is given to the
1Iy to guide them after they have before them the
circumstances of the accident, the condition, rela
lonshjp, and dependence Of the parties. their ability
md means support to be derived from the deceased
(f any, and other facts of this nature, in forming
hdr opinion Of what the pecuniary loss Of the next
- kin il under such circumstances. When the
pudge gave them the words OF the statute as the
rule Of damage, he certainly did not err, and when
he told them that the damages were to be what the
mother may be supposed to incur by the death of
HE child, he only told them that the damages were
uniary loss of the next Of kin. Any other con-
ttzucton would entirely destroy the intent of the
Paatute, which was to give to the next of kin o
right Of action for an injury, which the injured per-
ION would have had had not the injury resulted in
ter death. And we cannot accept any other con-
iukon as to the policy of this law. than that it was
Intended to compel persons and corporations engag-
ed in business which endangered the lives Of the
sitzens to be more careful than had been the case
before its passage, and by affording q redress for
inch injuries, which did not exist before, TO punish
Them for their negligence. Such an intent Is evil
esneed by the I'd section Of the act Of lS49, which
lnficts upon the guilty agent or servant of COM
Rany, punishment for the same offence for which
damages may be recovered. In the construction
pr acts passed evidently with the intent of re-
Huirng from railroad corporations as well others,
more care in regard to the lives Of travellers and
persons passing through the streets and highways,
= 10 not the duty Of courts to adopt views which
.ood tend TO render such acts nugatory and enable
iciaters Of them to escape with mpunity as was so
pIhn the case before this statute was enacted, but
Pm the contrary to give the statute effect by adopt
ng the evident intent with which il was passed. and
noidng those who negligentiy destroy the lives Of
fhird persons responsible for the consequences Of
ueh negligence But it ia said that the damages are
3 Excessive. The amount awarded by the jury was
SEQ. eight excess in the amount under circum-
tances OF the kind which give rise to such an action
souid not justify reversal OF the judgment, and
Lele tie amount is resting mainly in the discretion
Pf the jury. although they have awarded n sum
arger than the court might have granted if the case
bad been tried without jury, such an excess does
Dot warrant a new trial. Tie jury have intended to
nord an ample compensation for the loss still al
though the amount Of the verdict is large 1t does
os AFFORD evidence Of prejudice partality or cor.
fupton, and II not, there is ground for granting
new trial because the damages are large. My CON
Fmeion Is that the Judgment should be affirmed.
WooDKurF, 1.-The evidence relating TO the con-
,ucion Of the car, to which objection was made on
iai IN this case was, think, admissible upon this
Eround, (even conceding that upon a strict con.
fssusticn Of the complaint herein the plaintiff wa,
confined to proof Of negligence OF the driver In the
ogf Autx 49, n 4