Hirschkovitz v. Pennsylvania R. Co.

• Decision Date: 30 May 1905
• Citation: 138 F. 438
• Parties: HIRSCHKOVITZ v. PENNSYLVANIA R. CO.
• Court: U.S. District Court — Southern District of New York

138 F. 438

HIRSCHKOVITZ v. PENNSYLVANIA R. CO.

United States Circuit Court, S.D. New York.

May 30, 1905

Max Altmayer, for plaintiff.

Robinson Biddle & Ward, for defendant.

RAY District Judge.

This action, tried before a jury, resulted in a verdict of $3,500 for the plaintiff. The jury found negligence of defendant causing the death of plaintiff's intestate, based on evidence and a charge to which no exceptions now urged were taken, except that as to the longevity of the parents and grandparents of the deceased. The action is based on a statute of the state of New Jersey, the pertinent sections of which read as follows:

'Section 1. That whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case, the person who, or the corporation which would have been liable if death had ensued, shall be liable for an action for damages notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony.

'Sec. 2. That every such action shall be brought by and in the name of the personal representative of such deceased person, and the recovery in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the proportion provided by law in relation to the distribution of the personal property left by persons dying intestate. In every such action the jury may give such damages as they shall deem fair and just with reference to the pecuniary injury resulting from such death to the wife and next of kin of such deceased person, provided that every such action shall be commenced within twelve calendar months after the death of such deceased person.'

1 Gen. St. p. 1188.

In this case the next of kin to decedent, Josefsohn, is the father, now 67 years of age-- 65 at the time of the death of the son-- and a resident and citizen of the kingdom of Roumania. He has five other children residing in the old country, all poor, and having families of their own-- two boys and three girls. There is no proof of property in the family, or a suggestion that Josefsohn would have fallen heir to any property. He was 27 years of age at his death and unmarried; had been in this country about 2 1/2 to 5 years; was a common laborer here, receiving $1.50 per day as a car cleaner, and had been employed at that work for a few days only. Before that he had been in the employ of the defendant at Pittsburgh, Pa., as a waterman-- supplying cars with water. There is proof, of a somewhat indefinite character, that decedent was sending about $20 per month of his earnings to his father, in the old country--sometimes $20, sometimes less, sometimes $25 per month. In the old country the decedent was a clerk in a dry goods store. The proof fails to show steady employment or prospects of any material advancement in his position. He was not a skilled workman in any field of labor. Maybe he would have remained in the United States, remained unmarried, prospered, and proved able to send large sums to the father. Maybe not. Maybe the father will live a quarter of a century, but maybe the son would have died in a few years. It is quite true that there is no fixed rule of damages in such cases. In this case the court said to the jury, among other things, at the request of the plaintiff's attorney:

'The damages to the next of kin in that respect are necessarily indefinite, prospective, and contingent. They cannot be proved with even an approach to accuracy, and yet they are to be estimated and awarded, for the statute has so commanded. But even in such a case there is and there must be some basis in the proof for the estimate. Human lives are not all of the same value to the

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