Neff v. City of Cameron

• Decision Date: 03 July 1908
• Parties: JOY NEFF, by Next Friend, EDWIN NEFF, v. CITY OF CAMERON, Appellant
• Court: Missouri Supreme Court

111 S.W. 1139

213 Mo. 350

JOY NEFF, by Next Friend, EDWIN NEFF, v. CITY OF CAMERON, Appellant

Supreme Court of Missouri, First Division

July 3, 1908

Appeal from Andrew Circuit Court. -- Hon. A. D. Burnes, Judge.

Reversed and remanded.

F. B Ellis, J. A. Clark and J. A. Saunders for appellant.

(1) All persons must use ordinary care in going over a sidewalk. This applies to the parents as well as to children when the child is being guarded by the parent. The city of Cameron was only required to keep its sidewalks in a reasonably safe condition for persons whom they might reasonably expect would use such walk. They are not insurers against accident to children, no more than they are to adults. If parents knowingly permit their children to play in a dangerous place, or knowingly lead them in a careless manner, and the child is injured by the wilful conduct of the parent or its negligence, it cannot recover. Cannevant v. Stuyvesant, 33 N.Y.S. 53; Reed v. Railroad, 27 N.W. 77; 1 Thompson on Negligence, secs. 300, 316; Gunn v. Chicago, 97 Ill 66; Stilson v. Railroad, 67 Mo. 671. The city was not an insurer against accidents to children such as this and an instruction which eliminated this proposition is error, and should not have been given. Nixon v. Railroad, 141 Mo. 425; Heberling v. Warrensburg, 204 Mo. 604; Railroad v. Devore, 52 U.S. App. 77; Towers v. Railroad, 58 S.W. 439. (2) The verdict is absolutely excessive, and is not the result of cool deliberation of a jury. This child was only two years old. The damage to its health was speculative; it was only made lame by this injury, and the injury at first only slight. This child is incapable of earning anything until, say, it is fourteen years of age, and then its earnings go to the father and not to the child until eighteen. Chitty v. Railroad, 166 Mo. 443; Nichols v. Plate Glass Co., 126 Mo. 55; Adams v. Railroad, 100 Mo. 555; Devoy v. Railroad, 192 Mo. 221. (3) The argument of counsel for respondent was improper, and calculated to mislead and create a prejudice against appellant, which argument was duly objected to and excepted to by appellant. McDougal v. Cash, 45 Mo.App. 66; Massengale v. Rice, 94 Mo.App. 430.

Pross T. Cross and R. H. Musser for respondent.

(1) 1. The negligence of the parent cannot be imputed to the child. Boland v. Railroad, 36 Mo. 484; Winters v. Railroad, 99 Mo. 509; Brill v. Eddy, 115 Mo. 596; Profit v. Railroad, 91 Mo.App. 369; Robinson v. Cone, 22 Vt. 213; Whirley v. Whitman, 1 Head 610; Birge v. Gardiner, 19 Conn. 507; Railroad v. Hanlon, 53 Ala. 82; Railroad v. Mahoney, 57 Pa. St. 187; Roanoke v. Shull, 97 Va. 419; Railroad v. Manson, 30 Ohio St. 470; Railroad v. Groseclose, 88 Va. 267; Bottoms v. Railroad, 114 N.C. 699; Railroad v. Gravitt, 93 Ga. 369; Bamberger v. Railroad, 95 Tenn. 18; Westbrooke v. Railroad, 66 Miss. 560; Wymore v. Mahaska County, 78 Ia. 396; Ives v. Weldon, 114 Ia. 476; Bradshaw v. Frazier, 113 Ia. 579; Western Union Tel. Co. v. Hoffman, 80 Tex. 420; Evansville v. Senhenn, 151 Ind. 42; Railroad v. Eadie, 43 Ohio 98; Railroad v. Wilcox, 138 Ill. 370; Railroad v. Kowalski, 92 F. 310; Jacksonville Electric Co. v. Adams (Fla.), 39 So. 183; Railroad v. Herrklotz, 104 Ky. 400; Railroad v. Young, 57 Kan. 168; Shippy v. Au Sable, 85 Mich. 280; Huff v. Ames, 16 Neb. 139; Carney v. Railroad, 72 N.H. 364; Railroad v. Schuster, 113 Pa. St. 412; Eskildsen v. Seattle, 29 Wash. 583; Dicken v. Salt Co., 41 W.Va. 511. 2. Negligence on the part of plaintiff's parents would be a defense in this case only in the event that such parents' negligence was the sole cause of the injury, and that the negligence of defendant in keeping the walk in a dangerous condition did not in any degree proximately contribute to produce such injury. Defendant's negligence was the proximate cause of the injury. Vogelgesang v. St. Louis, 139 Mo. 127; Hull v. Kansas City, 54 Mo. 598; Bassett v. St. Joseph, 53 Mo. 290; Benjamin v. Railroad, 133 Mo. 274; Vogel v. City of West Plains, 73 Mo.App. 588. 3. Defendant further contends that instruction II was error on account of singling out issues not submitted and as a comment on evidence. But we submit that if the instruction was correct as a proposition of law, it was properly given, since defendant's answer sought to and did make an issue before the jury as to the responsibility of this infant for its parents' negligence. (2) Plaintiff cannot be held responsible for the negligence of either parent or physician in the treatment of her injury, or for a subsequent injury which aggravates the first, but in either case it becomes the result of the first injury. Elliot v. Kansas City, 174 Mo. 554; Conner v. Nevada, 188 Mo. 161. (3) The verdict is not excessive. This child is not only crippled and deformed for the rest of her life, but she will suffer great pain in the future, and, as shown by the doctors, in all probability the trouble will break out anew, and require more operations and probably amputation of the limb. In actions for personal injuries it is the policy of the law to leave the determination of the damages to the judgment of the individual jurors, and not to interfere, unless it is manifest that the verdict is the result of passion or prejudice. And this rule will be adhered to even though the award of the jury may seem large. Hanlon v. Railroad, 104 Mo. 381; Dimmett v. Railroad, 40 Mo.App. 654. And the fact that such injury cannot be measured by a definite money standard should make courts cautious, in such cases, in disturbing verdicts because excessive. Wills v. Railroad, 44 Mo.App. 51.

LAMM J. Valliant, P. J., absent.

OPINION

LAMM, J.

In an action for $ 25,000 damages grounded on negligence, plaintiff recovered $ 10,000, and defendant city appeals.

Cameron is a city of the third class with a north-and-south street named Orange. On the east side of Orange was a four-foot wooden sidewalk made of stringers laid lengthwise and boards nailed crosswise. On April 15, 1903, Joy Neff was about two years old. On that day, according to plaintiff's evidence, while led by her mother, she was walking on this sidewalk. The mother stepped on a loose board. It flew up and struck her on the left leg just below the knee-cap, causing (apparently) a slight but painful bruise. The child suffering, that evening a doctor was called who recommended a hot compress and rest. She received no more personal medical or surgical attention for several months, but her leg was treated by domestic remedies, compresses, liniments, etc., and she did not do well. She was kept in bed, and, when up, limped and complained. Eventually, in the course of some months, radical bone trouble developed in her knee. Surgeons were called and more than one surgical operation was performed at intervals, removing portions of diseased bone.

On the 17th of December, 1904, she brought suit by her father as next friend, her petition alleging she was unable to use her left leg, will be a cripple for her natural life, that her ability to earn a livelihood was permanently destroyed, that her general health and nervous system were permanently injured, her leg was shrunken and wasted away, etc., and she was disfigured for life. That said sidewalk, at the point and time in question, had been allowed through defendant's negligence to become old and rotten, the nails rusted and broken, the boards loose from the stringers, etc. That such dangerous conditions were long known to the city or would have been known by the exercise of reasonable care, but were negligently allowed to remain after the city had time to do repairs, etc.

The answer admits defendant is a city of the third class and puts in issue the other averments of the petition. It next invokes the doctrine of "imputed negligence" as a defense, alleging that if the child was injured it was not on account of defendant's fault, but on account of the negligence of her parents who had charge of her at the time and who permitted her to walk upon the sidewalk, which sidewalk could not be made reasonably safe for a child of so tender years to walk upon with reasonable safety. By way of further defense, it avers that if the child was injured at all it was only slightly injured. That, if the injury afterwards became permanent and serious, it was on account of want of proper treatment by the parents and attending physicians. That the child being incompetent to care for herself, the parents failed to properly care for her or to furnish her competent medical and surgical attendance. In short, that the after-complications arose from the negligence of the parents to the child and of the physician in failing to attend her and give her due surgical treatment after he knew of the character of her injury.

The case was taken on defendant's application to Andrew county by a change of venue, where it was tried with the aid of a jury, resulting in the aforesaid verdict.

At the trial it was contended that Orange street was not a public thoroughfare of the city of Cameron. The testimony took a wide range on that issue; for instance: Whether it had ever been platted as a street. Again, whether it was a de facto street through dedication, acceptance, etc. The clear weight of the testimony was that it had not only been platted, but that it had been improved and treated as a public street of Cameron in charge of the street commissioner. Public work had been done on it from year to year and it was in use as a public street for a long time before the accident. So, too, the sidewalk in question had been there for several years, and the city had assumed jurisdiction to cause it to be repaired when occasion called and to reconstruct it. True, on one side of the street for a half dozen blocks there were not many houses and that sec...