Samples v. Kansas City Rys. Co.

• Decision Date: 27 June 1921
• Docket Number: No. 14033.,14033.
• Citation: 232 S.W. 1049
• Parties: SAMPLES v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

232 S.W. 1049

SAMPLES v. KANSAS CITY RYS. CO.

No. 14033.

Kansas City Court of Appeals. Missouri.

June 27, 1921.

Rehearing Denied July 7, 1921.

Appeal from Circuit Court, Jackson County O. A. Lucas, Judge.

"Not to be officially reported."

Action by Goldie D. Samples against the Kansas City Railways Company. Verdict for plaintiff, motion for new trial denied, and defendant appeals. Affirmed.

Chas. N. Sadler and Mont T. Prewitt, both of Kansas City, for appellant.

Atwood, Wickersham, Hill & Popham, of Kansas City, for respondent.

ARNOLD, J.

This is a suit by a mother for expenses for medical services and for loss of service of her son, due to alleged negligence of defendant.

On August 8, 1914, Floyd Griffin, a newsboy 10 years of age, boarded one of defendant's street cars known as a Troost Avenue car, south-bound, while said car was in motion at Thirty-First and Troost avenue. He alighted at Thirty-Second street (Linwood boulevard), ran behind this car and toward the south side of Linwood boulevard, and boarded another Troost Avenue car which was slowly moving, north-bound. The car moved at an increasing rate of speed across Linwood boulevard, and when it had reached a point about the center of the intersection of the two streets the boy fell to the pavement and was run over by the trailer attached to the car from which he fell. His left leg was so badly crushed that amputation was necessary at the middle third of the thigh. What caused the boy to fall is the chief point in dispute.

The petition alleges and the testimony tends to show that the conductor of the car from which the boy fell, because of ill humor from having previously removed the lad from his car, struck the boy on the hand with which he was holding to the car, thus causing him to fall to the street and under the trailer.

At the time this accident occurred the Kansas City Railways Company, by sufferance, permitted newsboys to enter their cars to sell papers. Defendant denies that the conductor struck the boy.

The boy filed suit for damages and prevailed both in the circuit court and on appeal. Griffin v. K. C. Rys. Co., 199 Mo. App. 682, 204 S. W. 826. The testimony, so far as applicable in the two cases, necessarily was substantially the same. The petition pleads the facts practically as stated above and alleges willful negligence of the servant of the company, the conductor, in striking the boy's hand, causing his fall and consequent injury. Further the petition pleads that the boy lived with his mother, the plaintiff herein, contributed to her support, and that by reason of said injuries his ability to work and earn wages was diminished and impaired, and by reason thereof he had become a great care and burden. That plaintiff had incurred medical, surgical, and hospital expenses in the sum of $250, and that by reason of the matters alleged plaintiff is damaged in the sum of $7,500.

The amended answer is a general denial, and specially pleads contributory negligence on the part of the injured boy, by reason of his failure to exercise ordinary care. Plaintiff's reply was a general denial. Trial to a jury resulted in a verdict for plaintiff in the sum of $3,350. Defendant appeals.

In its first assignment of error defendant contends that the court erred in giving instruction No. 1 for plaintiff, because it broadens the issues made by the pleadings, that there is no evidence upon which to base said instruction, and that it fails to require any finding by the jury against any defendant.

The objection and argument of defendant relative to this instruction is that, taken in connection with plaintiff's instruction No. 2, as indicated by its terms, it is based on statements having no evidentiary foundation.

Instruction No. 1 does not purport to cover the entire case, but refers to "other instructions herein" for the measure of damages. Instruction No. 2 for plaintiff purports to cover the question of the measure of damages. Instructions Nos. 1 and 2 therefore must be considered together.

It is urged by defendant that —

"The evidence shows that the boy was selling newspapers at the time of the accident in question. Every one knows, and the writer believes the court will take judicial notice of the fact, that a crippled boy does make more money selling newspapers than a boy who is not crippled."

This argument might be sound and convincing if it were true that the chief aim of human endeavor was limited to the sale of newspapers. But human experience teaches that there are other means of employment by which earnings may return revenue in excess of that produced by the efforts of a newsboy with only one leg. Human experience also teaches that there is no limit to aspiration and endeavor, and any argument of learned counsel to the effect that the loss of a leg is an asset in the earning power of a human being, to say the least, is not convincing. There is substantial evidence in the record as to loss of earning power by reason of the boy's condition after the amputation of the leg. And the question properly was submitted to the jury for its sound discretion and judgment.

The Supreme Court, speaking through Lamm, J., has declared the law on this point in Stotler v. Railroad, 200 Mo. loc. cit. 142, 98 S. W. 519:

"In dealing with infants of tender years, the rule is that the question of damages for loss of future earning capacity, in the absence of the existence of express evidence, is left to the sound judgment, the experience, the conscience of the jury. Wise v. Railroad, 198 Mo. 546; Schmitz v. Railroad, 119 Mo. loc. cit. 277 et seq.; Rosenkranz v. Railroad, 108 Mo. 9; Nagel v. Railroad, 75 Mo. 653; Blackwell v. Hill, 76 Mo. 54."

In Baldwin v. Harvey et al., 191 Mo. App. 233, 239, 177 S. W. 1087, 1089, this court held:

"In cases like this, the net value of the child's services during minority are not susceptible of exact proof, but the law, as well as the express direction of the statute, leaves it to the good sense, observation, and experience of the jury guided by the facts and circumstances. * * * But the law allows the jury to presume that the child will be dutiful and obedient, and from that to figure what the services ought to be worth. Brunke v. Missouri and Kansas Telephone Co., 112 Mo. App. 623, loc. cit. 628; Nagel v. Missouri Pacific R. Co., 75 Mo. 653, loc. cit. 665; Stotler v. Chicago & Alton Ry. Co., 200 Mo. 107, loc. cit. 142."

Defendant claims instruction No. 2 is erroneous because it permitted recovery for $150 for an artificial leg and $100 for medical expenses...