Sample v. Consol. Light & Ry. Co.1

• Decision Date: 14 December 1901
• Citation: 50 W.Va. 472,40 S.E. 597
• Court: West Virginia Supreme Court
• Parties: SAMPLE v. CONSOLIDATED LIGHT & RY. CO.1

40 S.E. 597

50 W.Va. 472

SAMPLE

v.CONSOLIDATED LIGHT & RY. CO.¹

Supreme Court of Appeals of West Virginia.

Dec. 14, 1901.

STREET RAILWAYS—INJURY TO PERSON ON TRACK—EVIDENCE.

1. A declaration by the motorman running on an electric car, made while the car was still on the body of one it had run down, that "I saw the child, but thought I could pass it;" of, "This is a terrible thing, I saw the child, but thought I could run past it, "—is admissible in evidence as a part of the res gestae in an action for the injury.

2. A motorman in charge of an electric car moving in the public street, where he has reason to expect little children are playing, must exercise a high degree of watchfulness in the operation of the car.

(Syllabus by the Court.)

Error to circuit eourt, Cabell county; E. S. Doolittle, Judge.

Action by E. E. Sample, administrator, against the Consolidated Light & Railway Company. Judgment for plaintiff. Defendant brings error. Affirmed.

Campbell, Holt & Campbell, for plaintiff in error.

Rankin, Wiley, Peyton & Perkin-son, for defendant in error.

McWHORTER, J. The Consolidated Light & Railway Company, on the 3d of October, 1899, being the owner and operating an electric street railway upon Third avenue, in the city of Huntington, on that day by one of its cars ran down and killed a child named Charles Jennings Lyons, two years and three months of age. On the 7th of October. 1899, E. E. Sample was appointed administrator of said child, and brought his action of trespass on the case against said company for the death of the child, laying his damages at $10,000. Defendant demurred to the declaration, which demurrer was overruled, and the plea of the general issue entered, and a jury impaneled. Upon the trial of the case the jury returned a verdict in favor of plaintiff for $4,000. The defendant, by counsel, moved the court to set aside said verdict, and grant it a new trial, upon the ground that said verdict is contrary to the law and the evidence, and because the same is excessive, evincing on the part of the jury prejudice, passion, partiality, and bias, which motion was overruled, and judgment entered upon said verdict. In the course of the trial the defendant tendered five bills of exceptions, which were signed, and saved to it, and made part of the record. The defendant obtained a writ of error assigning seven causes of error: First, in overruling the demurrer to plaintiff's declaration; second, that the verdict was contrary to the law and the evidence; third, that the verdict was excessive, and the court erred in not setting it aside; fourth, in modifying the defendant's instruction set out in first bill of exceptions; fifth, sixth, and seventh assignments relate to the admission of what is claimed to be improper testimony. Plaintiff in error assigns no cause of demurrer, and makes no mention of it in the brief of counsel for it, and the declaration seems to be sufficient.

It is claimed by plaintiff in error that the verdict of the jury is so excessive as to evince passion, bias, and prejudice, and therefore should be set aside. "Four thousand dollars was given by the jury for a male child of only two years and four months of age. Limit of $10,000 in the eye of the law compensates for the most valuable life of mature manhood or womanhood, and certainly nearly one-half of that sum is excessive for a mere babe, yet to be reared and conducted through the vicissitudes of childhood, and educated and maintained." Counsel seems to take a purely commercial view of the matter. The law does not fix a commercial value either on children or adults. A calamity of this nature cannot be compensated for in dollars and cents. The highest privilege that is given one in this life is to "rear and conduct through the vicissitudes of childhood and educate and maintain" one's children. No greater source of happiness pertains to this life. Section 6, c. 103, Code, relating to actions of this character, provides, "In every such action the jury may give such damages as they shall deem fair and just, not exceeding ten thousand dollars." This statute puts no value upon any individual, young or old, but the matter is left wholly with the jury as to what shall be deemed a fair and just amount of damages to be ascertained, not to exceed the amount authorized by statute. There are many cases where verdicts similar to this have been sustained by the courts. Id Houghkirk v. Canal Co., 28 Hun, 407, the court refused to set aside as excessive a verdict for $5,000, rendered for the death of a child six years of age. The court in that case in its opinion says that: "The damages could be reviewed in this court. But the difficulty is, by what test are we to review them? If it is a matter of guesswork, the jury can guess as well as we. If we are to review them by the test of the evidence, then the difficulty is that there is no direct evidence proving the amount of loss." The statute has wisely left it with the jury to say what the damages shall be. | In Turner v. Railroad Co., 40 W. Va. 075, 22 S. E. 83 (Syl., point 5), it is held: "The action of the jury assessing damages in case of the death of a person by the wrongful act, neglect, or default of another is not reviewable, as no damages allowed by the jury within the limit fixed by the statute can be deemed excessive; their determination of this question being absolute and exclusive as to what damages are fair and just, unless the verdict evinces passion, prejudice, partiality, or corruption on the part of the jury." There is nothing in the record in case at bar to indicate in any way that the action of the jury was not fair and impartial, and void of all passion, prejudice, or corruption.

The fourth assignment is the improper modification by the court, as set out in bill of exception No. 3, of the defendant's instruction, as follows: "The court instructs the jury that if they find from the facts and circumstances of this case that Charles J. Lyons, the father of the child that was killed by the defendant's car on the 3d day of October, 1899, negligently permitted said child to escape into the street, where it was run over and killed, and such negligence was the proximate cause of its death, then the negligence of the father must be attributed to the child, and the verdict should be for the defendant." Upon plaintiff's objection to said instruction the court added the following words: "Unless the jury further find that the motorman, Chas. Wade, was not exercising any care in looking out for persons upon or near the defendant's track; and that, if the said motorman had been in the exercise of such care, he could have discovered the child, and stopped the car in time to prevent the accident." Plaintiff in error insists that the modification should have carried the idea of willful or wanton negligence on the part of defendant. The modification is sufficient, it seems to me, to carry with it the idea of criminal negligence if the Jury can believe that the motorman was not exercising any care in looking out for persons upon and near the defendant's track. The expression contained in the modification is not "the use of ordinary care" or "reasonable care, " but if he was not exercising any care. "A motorman in charge of an electric car moving in the public street, where he has reason to expect little children are playing, must exercise a high degree of watchfulness in the operation of the car." Black, Law & Prac. Acc. Cas. p. 56, § 52; Traction Co. v. Heitman's Adm'r, 61 N. J. Law, 6S2, 40 Atl. 651—where it is held: "That a child two years and three months old, * * * to whom contributory negligence cannot be imputed, * * * was suffered to roam unattended in the public street, cannot relieve a traction company from liability for its negligence in the management of its car, resulting in the child's death." Railway Co. v. Mechler, 87 Tex. 628, 30 S. W. 809. The question properly arises in this case, was the defendant entitled, in any event, to an instruction on the question of contributory negligence on the part of the father? There is absolutely no evidence of contributory negligence unless the naked fact of the child being on the street alone could raise the presumption of negligence. On the other hand, all the evidence on that point tends to prove rather unusual care on the part of the parents, especially of the father. The child had been found unlatching the gate prior to this time. The parents had watched it, and, finding its mode of procedure to get out, the father had some month or two before the accident made special provisions for fastening the gate in a way that the child could not open it. In Thompson's new work on the Law of Negligence (.volume 1, § 324) it is said: "Small children have a right to light, air, and exercise, and the children of the poor cannot be constantly watched by their parents. From these considerations it follows that the mere fact that a child of tender years has been injured while at large and unattended on a public street or highway does not necessarily impute contributory negligence to its parents or guardian as matter of law, but is at most only prima facie evidence of negligence on their part subject to explanation. The question whether they have been negligent in allowing the child to be at large is generally a question for the jury in view of the circumstances attending the particular case. Even in the case of a very young child, —in one case only two years of age, —if, notwithstanding the exercise of reasonable care on their part, having regard to the situation, the child escapes on the public streets, and is therein injured through the negligence of another, that other must pay for the damages." Farris v. Railway Co., 80 Mo. 325. And section 325 of the same work cites numerous cases of the same character. And in Gavin v. City of Chicago, 97 111. 66, 37 Am. Rep. 99, where a child four years of age left, its parents' house unattended, without their...