1919.] Opinion, per CHASE, J. [225 N. Y.] conflict it is always for the jury to determine whether the facts in a given case bring it within one rule or the other. The question distinctly arises in this case whether the plaintiff is entitled to recover punitive or vindictive damages against the defendants. The court charged the jury that if they found the defendants "With evil heart desiring to ruin this boy or not caring at all whether they ruined him or not, knowing that surely he was acquiring this habit, that his life would be more or less affected thereby and that he would eventually become a useless citizen," and permitted "the sale of this poison to make money out of the miseries of this boy and did it from a reckless disregard of any duty towards any human being and out of desire to injure, in such case and no other can you consider the question of so-called punitive or vindictive damages." The defendants excepted to the charge and the court directed the jury that in case they found a verdict for the plaintiff they should find separately as to the compensatory damages and as to the punitive damages. At the close of the charge the defendants asked the court to charge "That there is no evidence in this case upon which they may predicate or make an award of punitive damages." The court declined to make this charge and the defendants took an exception. The common-law action which a master or parent has for loss of the services of a servant or minor child is based upon an injury to a property right. Compensation is allowed for loss of services to which the master or parent is entitled and for the expenses incurred by reason of such injury. Much has been written by the courts and by text writers upon the question whether punitive, vindictive, exemplary, aggravated, or retributory damages should be allowed in any case without reaching a generally accepted conclusion. In some states of this country [225 N. Y.] Opinion, per CHASE, J. [Jan., such damages are allowed by statute, and in others they are by statute prohibited. In most of the states, including this state, such damages are allowed to the person directly injured in cases of wrong committed with malice or reckless disregard of the rights of others. Such damages are allowed in this state in an action by a parent against a person who seduces his daughter. It was said in Cowden v. Wright (supra): " It is true, that in the action for the seduction of a daughter, the jury in fixing upon the damages may regard the wounded feelings of the family; but that case has always been considered sui generis, and inconsistent with the fundamental principle of the action." (p. 430.) We are of the opinion that such damages do not in this case come within the reason on which the common-law action in favor of a third person is sustained. The weight of reason and authority is in favor of confining the damages to be recovered in an action by a third party to compensation for the pecuniary injury actually sustained. (Cowden v. Wright, supra; Whitney v. Hitchcock, supra; Cuming v. Brooklyn City R. R. Co., supra; Barnes v. Keene, 132 N. Y. 13. See, also, Covert v. Gray, 34 Howard Pr. 450, and Ruling Case Law, vol. 20, pp. 614, 615, secs. 24, 25, and cases cited.) The jury found a verdict in favor of the plaintiff and fixed the compensatory damages at $2,000 and the punitive damages at $1,000. Judgment was entered for $3,000 and costs. The judgment should be modified by reducing the amount of the recovery to $2,000, being the amount found for compensatory damages, and, as thus modified, affirmed, without costs to either party in this court or in the Appellate Division. HISCOCK, Ch. J., COLLIN, CUDDEBACK, HOGAN and MCLAUGHLIN, JJ., concur; CRANE, J., absent. Judgment accordingly. 1919.] Statement of case. [225 N. Y.] CHACE TRUCKING COMPANY, Appellant, v. RICHMOND LIGHT AND RAILROAD COMPANY, Respondent. Street railways negligence - horses attached to truck, transporting pile driver through street, killed by electricity passing from trolley wires through truck - whether railroad company was negligent in failing to raise wires to prevent accident question for the jury — contributory negligence of persons driving truck question for the jury. 1. The moving of a pile driver sixteen feet high, loaded upon a truck and drawn by fourteen horses through a street occupied by the tracks and trolley wires of a street railroad, is not necessarily an unreasonable use of the street. 2. Where the railroad company, having been notified by the truckmen moving the pile driver that they intended to take it through the street, sent a wrecking wagon and a gang of men to lift the wires and prevent injury to its wires or to the men and horses engaged in moving the pile driver, the railroad was not a mere volunteer, but was performing its legal duty. 3. In an action brought by the owner of the truck and horses against the railroad company for the value of horses killed by electricity passing through the truck, it appears that plaintiff's employees in charge of the truck hesitated for fear of collision with the trolley wires. The foreman of the defendant urged plaintiff's employees to go on and assured them that the wires would be raised if necessary, saying: 'We are here and we will protect you, what more do you want." Relying upon such assurances, plaintiff's employees proceeded, and the truck came into contact with the trolley wire whereby electricity from it passed through the truck and killed some of the horses attached thereto. Held, that the order. of the Appellate Division reversing the judgment for plaintiff and dismissing the complaint is erroneous; that it was a question for the jury whether the defendant's servants were not negligent in stating that they could and would lift the wire if the danger became imminent and in inviting plaintiff's servants to drive on, when, as defendant's servants now say, that was an impossible thing for them to do. The question of plaintiff's contributory negligence was, also, for the jury. Chace Trucking Co. v. Richmond Light & R. R. Co., 173 App. Div. 663, reversed. (Argued December 9, 1918; decided January 28, 1919.) [225 N. Y.] Points of counsel. [Jan., APPEAL from a judgment, entered July 14, 1916, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint. The nature of the action and the facts, so far as material, are stated in the opinion. Henry Waldman and Joseph G. Abramson for appellant. The testimony adduced in behalf of plaintiff made out a prima facie case, and the questions of the negligence of defendant and the freedom from contributory negligence of plaintiff were properly submitted to the jury. (American R. T. Co. v. Hess, 125 N. Y. 641; Hinman v. Clarke, 121 App. Div. 105; Western N. Y. & P. Traction Co. v. Stillman, 68 Misc. Rep. 546; 143 App. Div. 717.) Appellant was not guilty of contributory negligence. (Murray v. Dwight, 15 App. Div. 241; Brown v. Stevens, 136 Mich. 311; Berkhart v. Schott, 101 Mo. App. 465; Kettle v. Turl, 162 N. Y. 255; Cohen v. Met. St. Ry. Co., 63 App. Div. 165; 170 N. Y. 588.) Bertram G. Eadie and Frank H. Innes for respondent. The appellant failed to prove the breach of any duty owed to it by the respondent either in contract, or in tort. (Dickeson v. Kewanee, 53 Ill. App. 379; W. N. Y. & P. Traction Co. v. Stillman, 143 App. Div. 717; B. E. L. & P. Co. v. Lefevre, 49 L. R. A. 771; Gross v. S. C. C. Ry. Co., 73 Ill. App. 217; Fort Madison St. Ry. Co. v. Hughes, 14 L. R. A. [N. S.] 448; Curtis on Electricity [1915 ed.], §§ 366-376; Northwestern T. Exch. Co. v. Anderson, 12 N. D. 585; N. Y. & N. J. Tel. Co. v. Diezheimer, 11 N. J. L. J. 246; Elliott on Roads & Streets, § 1072; Piehl v. Albany Ry. Co., 19 App. Div. 471.) The appellant was guilty of contributory negligence. (Shearman & Redfield on Neg. § 376.) 1919.] Opinion, per ANDREWS, J. [225 N. Y.] ANDREWS, J. Bay street, Stapleton, is a street thirtyfive to forty-five feet wide running north and south and is paved with asphalt. Through it the defendant has a double-track electric road. Power is conveyed to the cars through two overhead trolley wires, which although loaded with a dangerous current are necessarily exposed, which are fifteen feet from the pavement and each of which is twenty or twenty-two feet from the nearest curb. On February 23, 1909, the plaintiff was moving by truck a heavy pile driver the top of which reached sixteen feet or more from the pavement. Drawing this truck were fourteen horses. Two of them were hitched side by side to the pole, while the twelve others, two by two, were attached to the pole by a cable. Tied to the rear of the truck was another team hitched to a wagon the wheels of which were locked. Obviously the truck was steered by the action of the two horses hitched to the pole. The twelve in addition would have little effect upon it, unless the cable was taut and they were pulling upon it. The truck reached Bay street from the east. It was to turn toward the south. It was, therefore, necessary for it to reach the west side of the street, and to do so it had to pass beneath the trolley wires. The defendant, with its wires and other structures, was rightfully in the street. But it was not there to the exclusion of those other public uses to which the street is adapted. The grant to it was under the implied condition that it would not unreasonably interfere with such uses. (Lambert v. Westchester Elec. R. R. Co., 191 N. Y. 248; Opdycke v. P. S. R. Co., 78 N. J. L. 576; Mc Kim v. Philadelphia, 217 Penn. St. 243.) It might be required temporarily to remove its tracks if the street was to be graded (Matter of Deering, 93 N. Y. 361); or if a sewer were to be built (Brooklyn Elec. R. R. Co. v. City of Brooklyn, 2 App. Div. 98; New Orleans Gas L. Co. |