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defendant's machine saw or should have seen her dangerous position between the two machines in time to stop his own before striking her.
[Ed. Note.For cases in point, see vol. 25, Cent. Dig. Highways, $$ 460,
473.] 8. HUSBAND AND WIFE-INJURY OF WIFE-RECOVERY BY HUSBAND FOR LOSS OF
To entitle a husband to recover for the loss of his wife's services while she was incapacitated by reason of an injury due to defendant's negligence it is not necessary to show that he employed or became obligated to pay for the services of another to supply her place as housekeeper.
[Ed. Note.-For cases in point, see vol. 26, Cent. Dig. Husband and Wife, $ 768.]
Motions by defendant to set aside the verdict of the jury and for a new trial in each case, on the grounds that the verdict is contrary to the law and evidence and unsupported thereby, and on the exceptions to the ruling of the judge in refusing to direct a verdict for the defendant at the close of plaintiffs' case and again at the close of the whole evidence. No question of error is assigned by defendant on the rulings in rejecting or admitting evidence, or in the charge to the jury, and all such objections, if any, are waived.
William Victor Goldberg, for plaintiffs.
RAY, District Judge. Ginerva Garside, the plaintiff in the one action, is the wife of John R. Garside, the plaintiff in the other. Ginerva Garside sues to recover damages for injuries to her caused by the alleged negligence of the defendant, the New York Transportation Company, in running upon her with its electrical automobile near the intersection of Sixth avenue and Thirty-Fifth street in the city of New York on the 10th day of January, 1903. The husband, John R. Garside, brings his action to recover the damages he alleges he sustained by reason of the same negligence, to wit, the value of the services and society of the wife while she was suffering from such alleged injuries, and which he claims he lost because of such negligence. By written stipulation filed and agreement made in open court the two actions were tried as one, but separate verdicts were rendered.
The jury assessed the damages of Mrs. Garside at $4,000, and those of her husband, John R. Garside, at $1,000. Mr. Garside is a large manufacturer of shoes in the city of New York, and “keeps house” with his wife. She managed the household, and looked after its affairs, the servants, and children,
ervants, and children, and did some manual labor in connection therewith. They had a nurse for the children at times, but none at the time of the transaction in question. Prior to the accident Mrs. Garside was a strong active woman, in good health, and accustomed to protracted exercise in walking long distances etc., the mother of four children, and about 36 years of age. On the day in question, January 10, 1903, which was Mr. Garside's fortieth birthday, Mrs. Garside left her home a little before 2 o'clock p. m., and went to Huyler's on Forty-Second street, between Fifth and Sixth avenues, and then took a closed Sixth avenue surface car, and rode down to Thirty-Fifth street, on her way to Macy's store which is on the west side of Broadway, between Thirty-Fourth
and Thirty-Fifth streets. She was dressed in the street attire of the fashion of the day, and the skirt was of such length that the trail, if not gathered and held up by the hand when the wearer was walking, would drag a little. This Sixth avenue car, on which Mrs. Garside rode to Thirty-Fifth street, ran south, and stopped on the westeriy surface track of the avenue a few feet south of what would be the southerly or south side cross walk of Thirty-Fifth street, if a cross walk were actually constructed, for passengers to get on and off the car. This was the usual and regular stopping place for southbound cars on this as well as other avenues in the city of New York. At the locality in question there is an elevated railroad, supported by iron columns standing in the avenue about two feet outside of the outer rail of the surface car tracks, and Sixth avenue has two of these surface tracks, or four rails at suitable distances apart, and south-bound cars run on the westerly track, and north-bound cars run on the easterly track. At or near Thirty-Fourth street, Broadway crosses Sixth avenue diagonally, forming a triangle, which is bounded on the west by Broadway, on the north (the base) by Thirty-Fifth street, and on the east by Sixth avenue. The apex is not far from Thirty-Fourth street. It is 200 feet from Thirty-Fourth to Thirty-Fifth street. It is about 100 feet from the westerly side of Sixth avenue to the easterly side of Broadway on the north side, or along the base of this triangular space described. That space, fenced in and forming a small park, is surrounded by a walk, and a person alighting from a south-bound surface car at Thirty-Fifth street at the point mentioned, and desiring to cross to Broadway, and thence to Macy's, would naturally and almost necessarily pass to the walk on the west side of Sixth avenue, and thence along the walk at the base of this triangle, which is in fact the south sidewalk of Thirty-Fifth street. North of Thirty-Fifth street, at this place, between Thirty-Fifth and Thirty-Sixth streets and Sixth avenue and Broadway, stands the Herald Building. Sixth avenue is about 60 feet in width from curb to curb, and the distance between the curb line on the west side of Sixth avenue and the westerly or south-bound surface car tracks is not more than 20 feet. From curb line to the elevated pillars it is 18 feet. At the time in question there stood in Sixth avenue, next to but outside the curb, and extending nearly up to Thirty-Fifth street, lacking not over two feet, an owl wagon or night restaurant on wheels. This was about 6 or feet wide, and some 12 or more feet in length, and narrowed the street between a car on the westerly surface track and the owl wagon to not more than 14 feet. Between the line of iron columns of the elevated road and the owl wagon the distance was not more than 11 or 12 feet. One of these columns or pillars was about opposite the south end of the owl wagon. Just south of this owl wagon, and but a few feet distant from it in the avenue, stood a furniture van or wagon, which occupied as much or more space as did the owl wagon. These were in plain sight of any person passing up or down Sixth avenue, and could be seen for a long distance, and had been there months. This was a pleasant day, and the accident occurred shortly after 2 o'clock. Ordinary vehicles, such as automobiles or an ordinary carriage, could not at speed pass each other here safely. There was barely room to pass a person on foot, who was on the watch, safely. On alighting from the car, at the rear and on the west side thereof, according to her narrative of the transaction, Mrs. Garside faced and glanced south, and found that there was nothing in sight in the street, and then faced west, and found she had to move northwest in order to reach the curb, or move north till she had passed this owl wagon. She changed her purse and parcel from her right to her left hand, and gathered up her skirts with her right hand, and then took two or three steps in a northwesterly direction, when she felt herself pulled backward. Thereupon she screamed. She says:
"I felt myself pulled back, and I screamed. I was not hurt, I simply screamed from instinct, I think. Then I was pulled further back, and down and down onto my knees, and something hit my right hip, and then I screamed again. Something had caught me, and I screamed, and I found myself suddenly released, and something backed off my clothes."
She was then picked up, and turned around, when she saw this automobile of the defendant right there behind her. She says the wheel, or whatever it was, hit her, and "hurt me very severely, so that when it released me I sat down in a heap, sort of, and somebody picked me uplifted me up.” They attempted to put her in this automobile behind her, but she objected, and was then taken across Sixth avenue to Hall's drug store. Her skirt, worn by her that day, was produced in court, and, without objection, with the skirt on she described just how the transaction occurred. The skirt was torn from the waistband in the rear, and torn or split crosswise at the knees. She reiterated that she got off the car facing directly south, and that the force used in pulling her back and down was such that her knees were forced through the skirt, which was of strong material. At this time there was a temporary blockade of Sixth avenue on the easterly side, caused by a heavy ice wagon backed up to the east side curb, about opposite the rear of the car from which Mrs. Garside alighted, and this had delayed the movement of cars on the easterly or north-bound track to such an extent they were at a standstill for a few minutes. The defendant's automobile, an electrical vehicle, driven by its employé, one Joseph A. Carey, with whom one Daniel J. Lenahan, a footman for a Mr. Flower, was riding, came up Broadway, and turned into Sixth avenue at Thirty-Fourth street, about, and proceeded north from there on the east side at least half way to Thirty-Fifth street, and it is claimed further, when, seeing the block, without stopping or slackening its speed, it turned to the west across the surface tracks to the westerly side of the avenue, and then turned northerly, and passed up the avenue on the westerly side, and passed between the car from which Mrs. Garside had alighted on the east and this furniture van and owl wagon on the west, until it came in contact with Mrs. Garside. The plaintiffs contend that Mrs. Garside, having looked to the south and picked up the trail of her dress, was proceeding to cross in a diagonal direction from the place of alighting to the curb or walk on the west side, as she had the right to do, and as she was compelled to do in order to avoid this van and owl wagon. That, as she had taken a step or so to the northwest and towards the curb just north of this owl wagon, the defendant's vehicle, driven by Carey, came suddenly upon her from the south at dangerous speed, and carelessly and negligently driven and managed, so as not to be under proper control, and caught in her dress skirt, and pulled her back and then down, and that as she went down on her knees, held and pulled by the vehicle, it was forced against her right hip, and she was severely injured. The claim is that crossing from the east to the west side of Sixth avenue the vehicle was run carelessly at a high rate of speed, so as not to be under proper control, and that it crossed the avenue suddenly in front of the car from which Mrs. Garside alighted, either before it started or just after, without warning and without a slackening of speed. That the driver knew and had good and sufficient reason to apprehend that persons would be in the avenue at that point getting off and on the car, and passing to and from the curb or sidewalk, and that to run the vehicle into such a place at such a time at such rate of speed was a negligent act.
That Mrs. Garside was pulled down and run upon or against by defendant's vehicle cannot be doubted. There was an abundance of evidence that such was the fact. That it crossed from the east to the west side of the avenue but a very short time before striking Mrs. Garside was not disputed. No warning was given and speed was not slackened. There was a difference between defendant's witnesses who spoke on the subject and plaintiff's as to the speed of the vehicle; defendant's placing it at about three miles per hour, and plaintiff's at five or six miles per hour. The blockade in the east side of Sixth avenue was about opposite where the street car stopped, and about 30 to 60 feet south of the corner of the avenue and Thirtyfifth street. Defendant's vehicle was well up to it before it crossed, and probably passed to the west side but a short distance south of where Mrs. Garside stood when struck, possibly some 60 or 170 feet, although there was some evidence, the distance was less, and Mrs. Garside and the other persons who alighted from the car were probably hidden from the driver of the vehicle until it was within 30 to 60 feet of them. If the vehicle was proceeding at the rate of seven feet per second, as claimed, at such a place, under such circumstances and conditions, plainly visible and reasonably to be anticipated, the jury was amply justified in finding negligence on the part of the driver. The driver of the car and the footman with him admit they saw the street car coming south, saw it stop, and claim they saw Mrs. Garside alight. The footman says two others got off at the same time, and that Mrs. Garside was run upon or against as these persons were crossing to the westerly curb of the avenue. It was for the jury to say what the speed was and what the conditions were as the electrical vehicle passed to the westerly side, and whether, under the circumstances, the vehicle was being run at a negligent rate of speed and was negligently managed. At such a time and in such a place on that side of the avenue it was incumbent on the driver to proceed with great care and caution, having his vehicle well under control, and whether or not he did so was a question for the jury. Mrs. Garside was corroborated by witnesses who stood just across the street, and even looking at her as she alighted from the car.
It is true one or more of them say, in substance, she appeared to step backward, but as this was at the time defendant's vehicle came up to or upon her, and, as she says, caught her dress and pulled her backward, it was for the jury to say whether she stepped backward to the westward at all. It well might be that this compulsory movement was mistaken by these witnesses for a voluntary one on the part of Mrs. Garside.
The defendant contended that there was no fault on the part of the driver, and that the accident to Mrs. Garside was the result of her own negligence in backing into the defendant's vehicle, or that, even if the driver was negligent, she was also negligent, and that her negligence contributed to her injury, and therefore she cannot recover. The contention is that when she descended from the car she turned to the north and then to the east, and moved as if to go eastwardly across the surface tracks; that as she did this she was confronted by a very rapidly moving gasoline automobile going south on this surface track, following the car from which Mrs. Garside had alighted, which gave warning by “tooting” its horn, and that Mrs. Garside stepped back without looking behind her, and stepped directly in front of the right front wheel of defendant's vehicle, which was then proceeding so slowly and carefully up the avenue that it was brought to a dead stop the moment Mrs. Garside backed into it. The evidence that any such thing occurred was of a doubtful and suspicious character. There was considerable evidence that when Mrs. Garside was struck the car stood where it did when she alighted, and even the driver of defendant's vehicle finally said it was but just getting in motion. As the defendant proved that one or two other cars stood on the easterly track, and there was a blockade of the entire street beyond, and there was no room for a vehicle going south to pass between the cars, the jury was justified in finding that nothing of the kind occurred. More than one eyewitness, paying attention, said that no automobile passed to the south of Thirty-Fifth street at or near that time, or came down the avenue to the place of the accident. But, even if this did occur, it was not necessarily negligence on the part of Mrs. Garside that would prevent a recovery if she did step back to avoid an automobile going south, and came into contact with defendant's vehicle going north on the westerly side, if that vehicle was not under proper control, was being driven at a negligent rate of speed, and did not stop when its driver saw, or, in the exercise of ordinary care, ought to have seen, the perilous position of Mrs. Garside. She was rightfully in the avenue, and had a right to go east or west, proceeding with due care. If she was suddenly confronted with a rapidly moving vehicle going south at a rapid rate of speed, and defendant's driver saw this, and that she must step back quickly to avoid it, he was not justified in proceeding, being within some eight or nine feet of her, if he could see that collision with her and consequent injury to her would be the probable consequences. If, under all