Lucivero v. Long Island R. Co.

• Decision Date: 24 March 1960
• Citation: 22 Misc.2d 674,200 N.Y.S.2d 728
• Parties: Theresa M. LUCIVERO, as Administratrix of the Goods, Chattels & Credits which were of Nicholas Lucivero, deceased, Plaintiff, v. LONG ISLAND RAILROAD COMPANY, Defendant.
• Court: New York Supreme Court

Page 728

200 N.Y.S.2d 728

22 Misc.2d 674

Theresa M. LUCIVERO, as Administratrix of the Goods Chattels & Credits which were of Nicholas Lucivero, deceased, Plaintiff, v. LONG ISLAND RAILROAD COMPANY, Defendant.

Supreme Court, Trial Term, Kings County, Part IV.

March 24, 1960.

Jacob L. Fischer, New York City, for plaintiff (Harry H. Lipsig, New York City, of counsel).

Otto M. Buerger, New York City, for defendant Pennsylvania Station (James A. Treanor, Jr., New York City, of counsel).

J. IRWIN SHAPIRO, Justice.

In this negligence death action the jury found for the plaintiff in the sum of $175,000 to which, by stipulation, was added $1,500, the conceded amount of the property damage, making a total verdict of $176,500. The motion to set the verdict aside under section 549 of the Civil Practice Act was forthwith denied as to every ground urged except excessiveness. Upon that single issue, the court reserved decision.

The decedent had just gone into his own milk business, having previously earned $7,500 a year, and he was contributing at least $100 a week for the maintenance of his household. He was 30 years of age and left him surviving a widow, 31 years of age (with a life expectancy of about 35 years) and three children, a daughter 6 years of age, another daughter 4 years of age, and an unborn son now 2 years of age.

In arriving at the verdict of $175,000 the jury was entitled to consider the deceased's working habits, the amount contributed by him for the support of his family, and the loss to his survivors of his guidance, advice and care. Tilley v. Hudson River R. Co., 24 N.Y. 471; Beecher v. Long Island R. Co., 53 App.Div. 324, 65 N.Y.S. 642; Sternfels v. Metropolitan Street R. Co., 73 App.Div. 494, 77 N.Y.S. 309, affirmed 174 N.Y. 512, 66 N.E. 1117; and Seifter v. Brooklyn Heights R. Co., 55 App.Div. 10, 66 N.Y.S. 1107, reversed on other grounds 169 N.Y. 254, 62 N.E. 349.

The jury also had a right in coming to a proper evaluation of the loss sustained by the decedent's next of kin to consider the constant erosion in the value of the dollar and the present and ever upward spiraling cost of living (Neddo v. State of New York, 194 Misc. 379, 85 N.Y.S.2d 54, affirmed 275 App.Div. 492, 90 N.Y.S.2d 650, affirmed 300 N.Y. 533, 89 N.E.2d 253; Countryman v. Fonda, J. & G. R. Co., 166 N.Y. 201, 59 N.E. 822), the decedent's present position and his potential advancement in life and increased earning capacity (Freeman v. Manhattan Cab Corp., 1 Misc.2d 601, 150 N.Y.S.2d 674; Briscoe v. United States, 2 Cir., 65 F.2d 404).

So, too, the jury had a right to consider the deceased's and his widow's life expectancies as evidenced by the mortality tables, although of course they were not limited or bound thereby (O'Toole v. United States, 3 Cir., 242 F.2d 308), as well as the length of his work expectancy.

Taking all of the above factors into consideration, and recognizing 'that there is no mathematical formula for computing damages in a case of this kind and [that] the inquiry of the jury in this field necessarily requires some degree of speculation' (Walther v. News Syndicate Co., 276 App.Div. 169, 93 N.Y.S.2d 537, 545) and giving due weight to the fact that the courts in this State have increasingly...