Weir v. Union Ry. Co. of New York City

• Decision Date: 10 May 1907
• Citation: 81 N.E. 168,188 N.Y. 416
• Parties: WEIR v. UNION RY. CO. OF NEW YORK CITY.
• Court: New York Court of Appeals Court of Appeals

188 N.Y. 416

81 N.E. 168

WEIR

v.UNION RY. CO. OF NEW YORK CITY.

Court of Appeals of New York.

May 10, 1907.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Winant W. Weir against the Union Railway Company of New York City. From a judgment of the Appellate Division (103 N. Y. Supp. 1150), affirming a judgment for plaintiff, defendant appeals. Reversed.

Charles F. Brown, for appellant.

J. Stewart Ross, for respondent.

CHASE, J.

The plaintiff recovered judgment in this action against the defendant for personal injuries resulting from the fall of a fare indicator or register in one of defendant's street cars on which the plaintiff was a passenger. An appeal was taken from said judgment to the Appellate Division of the Supreme Court, where it was unanimously affirmed. The appeal is taken to this court pursuant to an order of the said Appellate Division allowing the same, and in which order it is certified that, in the opinion of the court, a question of law is involved which ought to be reviewed by this court. The only question of law involved arises upon rulings of the trial court upon objections to questions involving the profits of the business conducted by the plaintiff.

The plaintiff, who is usually employed as a boatman, had for six or seven months prior to the accident rented a room which immediately adjoined the street along the side of a liquor store. In the room, the dimensions of which were 5 by 16 feet, he conducted a lunch business and sold oysters, clams, crabs, lobsters, beef stew, and fish. There were sittings in the room for six or eight people, and the food was eaten by purchasers at the plaintiff's place of business. During some portion of the time that he was conducting such business he employed therein two or three men, and at the time of the accident he was employing one man. Oysters and clams were opened as ordered, and they were the principal articles of food sold, and the plaintiff purchased them by the barrel. The supplies purchased by the plaintiff varied in price and the amounts sold varied to such an extent that the number of persons employed had to be changed from time to time. It does not appear that it required any particular skill or ability to do the work of managing the business that the plaintiff was conducting, or that the plaintiff had any particular skill or ability in opening oysters or clams or in serving food to others. The trial court allowed the plaintiff to testify that he was doing a business of about $120 and sometimes $140 a week, and that his expenses each week for help were $10 or $12, and for stock $40, and that his rent was $10 a month, and that the remainder of the proceeds of his business was profit. This testimony was given subject to objections on the part of the defendant that it was incompetent, immaterial, and irrelevant, and as calling for special damages not pleaded by the plaintiff, and that it related to a business in which the plaintiff had capital invested. The objections of the defendant were overruled, and the defendant excepted to the ruling of the court.

Where a person by reason of personal injuries has been prevented from performing the work or services in which he was engaged at the time of the injury, the loss of time occasioned thereby and also any loss or diminution of future earning power are elements of damage to be considered by a jury. A loss of income can be shown and considered when such income is derived from personal effort or particular skill and ability as distinguished from the profits of a business in which capital is invested and which is dependent upon the continuance of the business as well as the capital, but mere profits of a business as such cannot be considered in measuring the damagesarising from such loss of time or diminution of earning power. In this case the business did not require a large...