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Opinion of the Court, per ALLEN, J.

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WARD, in the case last cited, “it is one thing to define a principle of law, and a very different matter to apply it well. The rights and duties of parties grow out of the circumstances in which they are placed.”

McIntyre v. N. Y. C. R. R. Co. (37 N. Y., 287) is, in principle, analogous to this, and a recovery was had for injuries received by a passenger in passing in the evening, and under circumstances increasing the hazard of the undertaking from one car to another while the train was in motion, the attempt having been made by direction of the defendant's servants, and to obtain a seat which could not be had in the car in which the passenger was.

A passenger voluntarily and without necessity making such an attempt and receiving an injury, would be held to be at fault and without remedy; but the peculiar circumstances of the case took it out of the general rule. In Foy v. London, Brighton and South Coast R. R. Co. (18 C. B. R., N. S., 225), a recovery was had for an injury received in alighting from the cars, caused by the insufficient means for alighting furnished by the company, although the hazard of the attempt was as patent to the plaintiff as to the servants of the company. The jury there found that the defendant was guilty of negligence in not having provided conveniences for getting down from the carriage, and negatived the claim that the passenger contributed to the accident.

The court in banc sustained the recovery and refused leave to appeal, saying: “We do not think this a fit case for an appeal.” In that case, the lady was desired by a porter in the employ of the company to alight; and that circumstance was held by the court to distinguish it from a subsequent case. (Siner v. G. W. R. Co., L. R., 3 Exch., 150; affirmed in Exchequer Chambers, 17 W. R., 417.)

The case was similar in all its circumstances to Foy's Case, except there was no direction or request by the company's servants to the lady to get down from the carriage. The court held, against the dissent of KELLY, C. B., in the Court of Exchequer, and Justice KEATING, in the Exchequer Cham

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Opinion of the Court, per ALLEN, J.

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bers, that there was no evidence of negligence to go to the jury. Chief Baron KELLY was of the opinion that the stopping of the train, without any notice to the passengers to get out, was an invitation to them to do so; that the descent, although dangerous, was not so clearly dangerous that the plaintiff might not properly encounter the risk; and that the ompany, having wrongfully put the passengers to the necessity of choosing between two alternatives, the inconvenience of being carried on and the danger of getting out, they were liable for the consequences of the choice, provided it was not exercised wantonly or unreasonably. The reasoning of the chief baron applies with force to this case, and is in harmony with McIntyre v. N. Y. C. R. R. Co. (supra). The danger here was not certain, and the defendant cannot complain that the plaintiff did, under the circumstances, encounter some degree of peril, the jury having found that it was not imprudent for her so to do, and was encountered, at the instance of the brakeman on the cars.

If the injury was caused by the awkward and careless manner in which the plaintiff got down from the cars, a different question would be presented. The motion for a nonsuit was properly denied.

Upon the question of damages, the jury were instructed to give the plaintiff, if the questions of fact were found in her favor, such an amount of damages as they thought she was entitled to for the pain and suffering consequent upon her injury, and for any disqualification for labor in the exercise of her natural powers. A distinct exception was taken to that part of the charge which included, as an item of damages proper to be allowed, the plaintiff's disqualification to labor. The attention of the court being distinctly called to the precise point presented, an opportunity was given to qualify the charge and limit its application, if anything less was intended than the language would clearly import.

It was not qualified or explained, and must be held as an instruction, that the plaintiff was entitled to recover consequential damages resulting from her inability to labor. That

Opinion of the Court, per ALLEN, J.

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was put forth as a distinct item of damages proper to be allowed, and was not referred to as evidence of the extent of the injury and consequent pain and suffering.

There was no claim that the plaintiff was, at the time of the injury, carrying on any business, trade, or labor, upon or for her sole and separate account. Her services and earnings belonged to her husband; and for loss of such services, caused by the accident, he may have an action ; and another record before us shows that he has recovered for them, as he lawfully might do. (Reeves' Dom. Rel., Parker's ed., 138, and cases cited, marg. p. 63.) The Laws of 1860, chap. 90, permit a married woman to carry on any trade or business, and perform any labor or services on her sole and separate account, and give to her her earnings from her trade, business, labor or service; and she is authorized to sue for any injury to her person or character, the same as if she were sole. This is for the direct injury, and for direct and immediate damages, unless she is, on her own account and for her own benefit, engaged in some business in which she sustains a loss.

The amendatory act of 1862, chap. 172, does not enlarge the rights of the wife, or detract from the rights of the husband, or take from him the right to recover for the loss of service of his wife, caused by the wrongful act of another.

Consequential damages are in all cases limited to the amount actually sustained; and unless the wife is actually engaged in some business or service in which she would, but for the injury, have earned something for her separate benefit, and which she has lost by reason of the injury, she has sustained no consequential damages; she has lost nothing pecuniarily by reason of her inability to labor. The recovery was large, and was probably affected by the instruction that the inability of the plaintiff to labor constituted one of the items of damage to be taken into account by the jury.

For this error in the charge, the judgment should be reversed and a new trial granted.

All concur, CHURCH, Ch. J., not sitting.
Judgment reversed.

Statement of case.

49 57 110 243

49 47 145 517

CHARLES MATTHEWS, Respondent, v. CHARLES A. CoE,

Appellant.
If there is any evidence to sustain the facts found by a referee, his con-

clusion, if the facts are capable of the interpretation given to them by him
is final so far as this court is concerned; but where his conclusion is
predicated in part upon facts not proven, which may have had some
influence, the judgment will be reversed, as it cannot be determined
whether those assumed facts might not have had a controlling influence.
Thus, where a referee finds various facts, from which he finds an intent
to evade the usury laws, and some of the material facts are unsupported
by evidence, or are against evidence, it is an error of law, which is fatal
to the judgment, although usury may have been predicated upon the

facts proven. The rule giving the plaintiff, in an action for the conversion of property,

the benefit of the highest market price between the time of conversion and trial, is not an unqualified one. In an action against a consignee, where the evidence shows it was the intent of the owner, and the agreement between the parties, to have the property sold when it reached a certain price, and whe it also appeared it would have been difficult, if not impossible, to have preserved the property until the time when the price was fixed, an allowance of a price thus fixed greater than that

agreed upon is error. The propriety of the rule itself in cases not special and exceptional

questioned.

(Argued February 27, 1872; decided March 26, 1872.)

APPEAL from judgment of the General Term of the Supreme Court in the first judicial district, affirming a judgment in favor of plaintiff entered upon the report of a referee.

This action was brought to recover for an alleged conversion of warehouse receipts for 70,856 bushels of corn which were pledged by Simeon S. Losee as security for advances made by defendant. Plaintiff claimed that the agreement under which the advances were made was usurious. The action was originally cominenced by Losee; subsequently he assigned to the present plaintiff all his right and interest in the claims in suit, and the latter was substituted as plaintiff.

The facts pertinent to the questions discussed sufficiently appear in the opinion.

. SICKELS— VOL. IV. 8

Statement of case.

Amasa J. Parker for the appellant. The right of the borrower, Losee, to avoid the securities for the advances made by defendant on the ground of usury, was not assignable. (C. & M. R. R. Co. v. Kasson, 37 N. Y., 218, 224; Williams v. Tilt, 36 id., 319, 326; Sand v. Church, 2 Seld. 347; Billington v. Wagner, 33 id.,

Wagner, 33 id., 31; Bullard v. Raynor, 30 id., 197, 206. 207; Post v. Bank of Utica, 7 Hill, 391; Rexford v. Widger, 2 Coms., 137; Schermerhorn v. Tallma, 4 Kern., 127; Chamberlin v. Dempsey, 36 N. Y., 144, 149; 11 Wend., 329; Draper v. Frescott, 29 Barb., 401; Murry v. Barnes, 34 id., 336; De Wolf v. Johnson, 11 Wheat., 329; Mechanics' Bank v. Edwards, 1 Barb., 271; 2 id., 545.) The onus of proving usurious intent was upon the plaintiff, and there was no evidence to sustain it. (Valentine v. Connor, 40 N. Y., 248; Bullock v. Boyd, Hoffman, 294; Thomas v. Many, 32 N. Y., 605, 612; Trotter v. Curtes, 19 J., 160; Booth v. Sweezy, 4 Seld., 280; Nourse v. Prime, 7 J. Ch., 69; Smith v. Marvin, 27 N. Y., 137; Thurston v. Cornell, 38 id., 281; Condit v. Baldwin, 21 id., 221; Martin v. Fealer, 8 Wend., 533; Suydam v. Bartle, 10 Paige, 94; Suydam v. Westfall, 4 Hill, 211; Seymour v. Martin, 11 Barb., 40; 19 N. Y., 161.) The referee erred in allowing as damages the price a year and a half after the commencement of the action. (Birch v. Dutcher, 34 N. Y., 495; Scott v. Rogers, 31 id., 676; Romaine v. Van Allen, 26 id., 309; Leslie v. Hoffman, 1 Ed., 475; Ward v. Benson, 31 How., 411; Barton v. Fish, 31 N. Y., 166; Markham v. Jourdan, 41 id., 235.) Plaintiff could not recover without showing payment or tender of defendant's advances. (Beecher V. Ackerman, 1 Abb. Prac., N. S., 141 ; 14 N. Y., 93, 191; 24 id., 170-178; 5 Seld., 73; Rexford v. Widger, 2 Coins., 131; Post v. Bank of Utica, 7 Hill, 391; 4 Kern., 127.) Finding of fact, unsupported by evidence, is error of law. (Wegman v. Childs, 41 N. Y., 159.)

John K. Porter for the respondent. Upon the question of usury, the law looks at the substance and the transaction

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