Rosenkranz v. Lindell Ry. Co.

• Citation: 108 Mo. 9,18 S.W. 890
• Court: United States State Supreme Court of Missouri
• Decision Date: 22 December 1891
• Parties: ROSENKRANZ v. LINDELL RY. CO.<SMALL><SUP>1</SUP></SMALL>

18 S.W. 890

108 Mo. 9

ROSENKRANZ v. LINDELL RY. CO.¹

Supreme Court of Missouri, Division No. 2.

December 22, 1891.

INJURIES TO INFANT — NEGLIGENCE AND CONTRIBUTORY NEGLIGENCE — EVIDENCE — DAMAGES — LOSS OF EARNINGS.

1. A child four years old started to run across a street at about the middle of a block, fell about four feet in front of a horse drawing a street-car, and moving at a slow trot, and was run over. There was evidence that it was dusk at the time, but sufficiently light to enable one to distinctly see the child half across the street; that to the driver's knowledge the street at this point was much frequented by children; that the car could have been stopped within a distance of two feet; that the driver was giving no attention to the track in front of him, and did not see the child before the car passed over him. Held, that the issue of negligence was properly submitted to the jury.

2. The child's parents were poor and dependent on their own labor. The father was sick in a hospital from which the child and his mother had just returned. The mother left the child on the door-steps, and went in to get something for him to eat. The house was 25 feet from the road, and located on an alley. Held, that the mother was not chargeable, as a matter of law, with contributory negligence.

3. An instruction that if the jury find for plaintiff they should "assess his damages at such a sum as they may believe from the evidence will be a fair compensation to him: (1) For any pain of body or mind; (2) for any loss of earnings after he shall have attained the age of twenty-one years; (3) for any physical disfigurement or deformity; (4) for any permanent injury to his body other than disfigurement and deformity, which plaintiff has sustained, or will hereafter sustain, by reason of said injuries, and directly caused thereby," — cannot be said to be so wanting in clearness or perspicuity that it could have confused or misled the jury.

4. In an action for personal injuries to a child four years old, the jury may take into consideration, as an element of damages, loss of earnings after he shall have obtained majority, though he has never earned anything, and though no one can tell with any certainty what his earning capacity will be.

Appeal from St. Louis circuit court; JACOB KLIEN, Judge.

Action by William Rosenkranz, by next friend, against the Lindell Railway Company, for personal injuries caused by defendant's negligence. From a judgment on a verdict for plaintiff, defendant appeals. Affirmed.

Alex. Martin and Boyle, Adams & McKeighan, for appellant. A. R. Taylor and Alex. Young, for respondent.

MACFARLANE, J.

This action was brought by plaintiff, a minor, by his next friend, against the defendant, a horse-car railroad company, in St. Louis, to recover damages for injuries received on the 16th day of February, 1888, by the alleged negligence of defendant. The charge of negligence made in the petition was, in substance, that the plaintiff was knocked down and run over by one of defendant's cars, and horse attached thereto, while the plaintiff was crossing Chouteau avenue, at a point where said avenue passes house No. 2313; that he was seriously and permanently injured thereby, and that he was so knocked down and injured through the negligence of defendant and its servants in charge of said horse-car. It was also charged that the driver of the car neglected to observe the requirements of a certain ordinance of the city, regulating the operation of street-cars, in failing to keep a vigilant watch for children who might be on the track, and in failing to stop the car in time to avoid injuring plaintiff. It is further alleged that plaintiff's arm was broken in two places, his skull broken, his face and jaws crushed and disfigured for life. The defendant, in its answer, denies the allegations of the petition, sets out the names of the parents of plaintiff, and alleges that the supposed injuries of plaintiff were caused by the negligence and want of care of plaintiff and his said parents. To his answer the plaintiff replied, denying the allegation of counter negligence, and admitting the parentage of plaintiff as alleged. It appears, from the evidence, that plaintiff at the time of his injuries was four years of age, and lived with his parents, in the rear of 2311 Chouteau avenue, on the north side. The family consisted of father, mother, plaintiff, and a younger child. They occupied two rooms in a yard back from the street. A narrow alley or hallway connected the yard with the street. On this street were two horse-railway tracks operated by defendant. The father of plaintiff, on the date of the accident, was in a hospital sick. The mother and plaintiff had spent the afternoon at the hospital, with the father, and on their return home, between 6 and 7 o'clock, the mother gave plaintiff some milk and bread, and he sat on the door-steps to eat it. Soon after she directed a neighbor boy to take a bucket and go across the street, to a saloon, nearly opposite the entrance to the passway, and get some beer. She then went into the house, to get something more for plaintiff to eat, and while she was gone he followed, or went with, the boy across the street, to the saloon. As they returned, the older boy, with the beer, passed over the street, and plaintiff, following, fell upon one of the railway tracks, about four feet in front of the horse drawing one of defendant's cars, and the horse and car passed over him, inflicting severe injuries. Upon the trial the jury returned a verdict for plaintiff for $3,500, and judgment was rendered accordingly, from which defendant appealed.

To reverse the judgment, defendant insists on three points: First, insufficiency of the evidence to authorize the verdict; second, contributory negligence on the part of the parents of plaintiff; and, third, improper instructions defining the elements of damage to be taken into account by the jury in making their verdict. The questions of the negligence of defendant, and the contributory negligence of plaintiff's parents, were submitted to the jury upon instructions with which no fault is found, and the judgment cannot be disturbed, for the first two assignments of error, unless there is no substantial evidence of negligence on the part of defendant, or unless the evidence shows, as a matter of law, that there was negligence of the parents of plaintiff which directly contributed to his injury.

1. Did the evidence justify the verdict? Defendant's counsel condenses the evidence into the following summary, and insists that it is insufficient to support the verdict: (1) The plaintiff at the time of receiving the injury in question was crossing the street between 6 and 7 o'clock P. M. on February 16th,...