City of Vicksburg v. McLain

1. Negligence. Trespasser. Child playing in street. A city guilty of negligence causing the death of a child eight years old while playing in a street cannot avoid liability in a suit by the parent on the ground that the child was a trespasser. 2. Contributory Negligence. Child of tender years. Presumption of incapacity. A child eight years old is prima facie incapable of contributory negligence, but if he is of exceptional capacity this may be shown. Westbrook v. M. Sp O. R. R. Co., 66 Miss. 560. 3. Same. Pleading contributory negligence. Instruction. In an action for the death of a child of such age, if the defendant relies upon contributory negligence of the child, he must, in order to meet the presumption of incapacity, plead the fact of exceptional capacity. Under the plea of general issue he is not entitled to an instruction as to such ■ contributory negligence. 4. Negligence. Municipal corporation. Injury causing death of child. When a city in grading a street near a school, attended, by small children, has left for several months a precipitous bluff thirty or forty feet high, which from caving and other causes becomes dangerous, as is known to the authorities who neglect to repair it, and one of the school children, eight years old, while playing in the street with others, is killed by the falling of part of the bluff, the city is liable in damages for the death, though the jury may believe that the bluff was left in a reasonably safe condition when the grading ceased. 5. Damages. Measure of. Death of child. Only pecuniary damages are recoverable by a parent for the negligent killing of a child, but the word pecuniary is not to be construed in a strict sense. The recovery is not to he limited to the present loss in money, but prospective advantages of a pecuniary nature may be considered. 6. Same. Certainty of loss. Instruction. The same certainty of pecuniary loss is not required as in other cases where the amount may be definitely shown ; and it is not improper to grant an instruction that the damages recoverable are largely within the discretion of the jury. 7. Same. Excessive verdict. Remittitur. Under the facts of this case, a verdict of four thousand dollars in favor of a father for the death of a son eight years old, considered excessive to the amount of two thousand dollars, and a remittitur of the excess allowed.

From the circuit court of Warren county. Hon. Ralph North, Judge. The allegations of the declaration in this case are set forth in the opinion of the court. The truth of these averments were substantially established by the evidence at the trial. It was shown that a large number of small boys attended the Walnut street public school, which was just north of the embankment or bluff left by the city in grading South Madison street in 1886, as stated in the opinion; that by reason of caving and other causes this bluff had become dangerous as was well known, and that the city authorities neglected to repair it or take any precautions to prevent accidents, and that it remained in this dangerous condition for at least two months before the injury complained of; that the children attending this school had no play-ground except the school-yard and the street in front of it upon which this bluff was left standing; that on March 27, 1888, at noon recess, plaintiff's son, not quite eight years old, together with several of his school-mates, went into the street to play marbles. Being near the base of this bluff, unconscious of danger, without warning, a part of the overhanging bank broke loose and fell upon them, killing plaintiff's son and another child and injuring two others. Two witnesses testified as to the value of the services, one of them to the effect that a boy between eight and thirteen years of age would earn $2.50 to $3 a week; from thirteen to seventeen, $15 to $20 a month, and from seventeen to twenty-one years of age $25 to $40 a month; but that if a parent was desirous of giving his child a good education the cost of support and education would generally about equal his earuings up to majority. The testimony of the other witness as to the earning capacity of a boy was about the same; that he had a boy sixteen years old in his employ, in Vicksburg, to whom he paid wages $25 a month, less $8 for board. The second and sixth instructions given for the plaintiff, being the ones mainly attacked in argument, are as follows :— “ 2. Although the jury should believe from the evidence that the city authorities left the south bank or wall of the street in a reasonably safe condition when they quit work there, yet should they further believe from the evidence that the wall afterwards became unsafe and dangerous and liable to fall by reason of the caving, or by reason of persons digging under the same, and the city authorities had notice of such unsafe and dangerous condition and time to repair the same, and took no means or precaution to prevent it from falling, then they were negligent.'' “ 6. While the damages are measured by money, and are such as can be satisfied by a pecuniary recompense, yet the word pecuniary is not to be construed in a strict sense, nor is the same certainty of loss required to be established as in ordinary actions. The damages recoverable are largely prospective, and their determination is committed to the discretion of the jury even on very meagre and uncertain data.” For a further statement of the case, see the opinion of the court. 1. Plaintiff’s second instruction is erroneous in failing to indicate the length <_f time required to repair and the degree of diligence imposed on the city. Unless actual notice had come to the city and there was reasonable time to repair before the accident; or, unless sufficient time had elapsed to enable the corporation by the exercise of reasonable diligence to discover the defect, the city was not liable and the jury should have been so informed. Thompson on Trials, p. 1248. 2. The court erred in instructing the jury as to the measure of damages. The second instruction for defendant should have been given without modification. “ The measure of damages in case of the death of a minor child, is the probable value of his services from the time of injury until majority, less the probable cost of maintenance.” This is the language of Whitaker’s notes to Smith on Negligence, citing various cases. See, also, Thompson on Negligence, p. 1292; Hcuney v. Hans. City, 94 Mo. 335; JR. R. Co. v. Barker, 33 Ark. 350. “ The value of the services is to be estimated as in the case of children in the same condition and station in life, without regard to any peculiar value that the plaintiff may attach to such services.” Smith on Negligence, p. 442. The sixth instruction for plaintiff is manifestly wrong. The jury could only be governed by the evidence before them. When the court gave this instruction and refused to tell the jury to be governed by the evidence, that the enormous verdict for the plaintiff followed is not surprising. On this subject the case of O’JMJara v. Hudson River Co., 98 Ani. Dec., is directly in point. It holds that the jury cannot go beyond the evidence and be influenced by their own experience in fixing damages. See, also, R. R. Co. v. Sarett, 45 111. 197; s. c. 92 Am. Dec. 206. Juries cannot be permitted to roam at will in the field of conjecture. This proposition needs the authority of no case to support it. 3. The seventh instruction asked by defendant on the subject of the contributory negligence of the child should have been given, and this question should have been left to the jury. Beach on Con. Neg., pp. 138-144; Miss. Cent. JR. JR. Co. v. Mason, 51 Miss. 234. Defense of contributory negligence may be shown under the general issue. Thompson on Damages, 1179. If plaintiff’s evidence show conclusively contributory negligence, he is liable to nonsuit; if his proof leave a doubt, the question is for the jury. 42 Wis. 513 ; 28 Am. B. 558. 4. The damages are excessive. In no view of the testimony were the jury warranted in finding over $1000 or $1500. R. R. Co. v. JBarlcer, 33 Ark. 369; s. c. 34 Am. B. 44; Hurt v. Ry. Co., 94 Mo. 255; s. c. 4 Am. St. B. 374. 1. The question of contributory negligence should have been submitted to the jury. If the child was of that tender age as not to be at fault, this is not true of the parent. On this point see 2 Thompson on Neg., p. 1104; lb. 1181, §§ 33, 34; 1 Keyes, 570. As the parent did not care for and look after his child, if the injury was not voluntary or did not arise from gross negligence the plaintiff cannot recover. 1 Thompson on Neg., pages 1121 and 1181; 47 N. Y. 83; 21 Wend. 615; Westbrook v. R. R. Co., 66 Miss. 560. 2. A city is not liable for an accident occurring in a street if the person injured is not using the street for a proper purpose. 2 Dill. Mun. Cor., §§ 964, 965, 1015, and notes. 3. A parent can only recover where an action could be maintained by the child. 47 N. Y. 83. The case of Mackey v. Viclcsburg, 64 Miss., has no application, as it is not averred that the place was inviting or attracted the child. 4. The court erred in refusing defendant’s third instruction. The jurors are supposed to know nothing of the case except as shown by the evidence. The amount of damages must be proved, and in this case the measure was the value of the child’s services from the date of the injury to majority, less the cost of maintenance. 2 Thomp. on Neg., 1292; 15 N. Y. 432; 83 111. 205; 82 Ib. 198; 20 Wend. 210; 54 Penn. 495; 4 Bliss. 430; Sedgwick on Meas. Dam., 2d vol. 534. 5. The verdict is excessive. The testimony of plaintiff shows that he desired to give his child a good education, and that he could not possibly be expected to have earned the amount recovered. In cases of this character the courts must be relied upon to restrain juries in giving excessive verdicts. We cannot believe that the court will allow this verdict to stand. 1. The declaration shows a good cause of action. The idea that the child playing in the street was a trespasser is certainly an original one. The defendant was guilty of the grossest negligence, and is clearly liable. Mackey v. VicJcsburg, 64 Miss. 777. 2. It was not necessary to aver in the declaration that the deceased was in the exercise of proper care. Contributory negligence is a defense, and must be pleaded. Hickman v. JR. JR. Co., 66 Miss. 154; 93 U. S. 291; 15 Wall. 401. 3. The verdict is clearly right on the facts. Plaintiff was entitled to judgment, regardless of any supposed errors in the admission of testimony and in the instructions to the jury. But there are no such errors. Plaintiff’s instructions are free from objections. It was the duty of the city to keep the street in a reasonably safe condition; it was bound to take notice of the dangerous condition of this embankment and take steps to prevent injuries likely to occur there. Plaintiff’s sixth instruction was taken verbatim from Southerland on Damages, vol. 3, p. 283. 4. There was no plea of contributory negligence, and if there had been the facts would not support a defense on that ground. Therefore defendant was not prejudiced by the refusal of its seventh instruction. Nor was there any error in refusing defendant’s ninth instruction as to “ legal notice” of the unsafe condition of the street at the place in question. The city left the bluff as it was and paid no attention to rains, caving, and the like. Besides, the authorities were there frequently just prior to the accident, and must have known that the bank was liable to fall. 5. There never was any question in this case except as to the amount of the damages. It is, we admit, a cold question as to the value of the boy in a quasi pecuniary sense. But the statute provides that “in every such case the jury may give such damages as may be fair and just with reference to the injury resulting from the death of the child to the person suing.” Code 1880, § 1510. The law presumes loss to the parent on the death of a child. 53 Minn. 84; 75 111. 486; 83 lb. 204. The recovery is not limited to actual pecuniary damages in the strict sense, and to what may be proved at the trial. R. R. Co. v. Parsons, 94 Mo. 236; 17 Ñ. Y. 321. It is exceedingly difficult to measure the damages in dollars and cents in cases of this kind. To guess at the amount is the peculiar province of a jury; and it is about the only purpose for which a jury is serviceable. In this case evidence was offered as to the value of the boy’s services. But, under the statute, it was the duty of the jury to estimate the damages, according to their own knowledge and experience, after knowing the age of the boy, his condition of health, and the like. The jury could take the estimates of witnesses, or reject them and make an estimate of their own. Under the statute and authorities above cited, we submit that the verdict is not excessive. In one case the court refused to disturb a verdict of five thousand dollars for the death of a bright, healthy child six years old. 28 Hun (N. Y.), 409. The jury, not being misled by instructions, as long as within the bounds of compensation, are supreme. But, if the court holds that the verdict is too large, we ask leave to enter a remittitur for the excess. 1. The demurrer was properly overruled. Mackey v. Vicksburg, 64 Miss. 777; Westbrook v. R. R. Co., 66 lb. 560. 2. The verdict is sustained by the evidence. ' Chicago v. Major, 18 111. 349. 3. The jury were the judges of the amount of damages, and had the right to apply their own knowledge of the affairs of life in connection with the evidence. Chicago v. Major, supra; Code 1880, 1510. 4. The instructions are free from error. The seventh for defendant was not applicable, as contributory negligence was not pleaded. WestbrooJc v. JR. JR. Co., supra. Defendant’s sixth instruction was also properly refused. A city may not leave pitfalls where children are liable to be injured. 18 111. 360. The length of time the embankment was left standing in a dangerous condition was sufficient to give the city notice and to impose the duty to repair. 5. But, if the court is of opinion that, the verdict is excessive, we will remit the excess and ask that judgment be entered here in accordance with § 2300, code 1880.