Brown v. St. Louis & Suburban Railway Co.

127 Mo. App. 499 | Mo. Ct. App. | 1907

BLAND, P. J.

(after stating the facts).—1. The first error assigned is the refusal of the court to take the case from the jury, as requested by defendant. • The evidence of the janitor of the Harrison School, that from fifty to one hundred school boys played ball daily on the vacant lot west of the railroad tracks; the evidence showing the boys crossed these tracks where Leroy Brown was struck by the car, and the evidence of Duell, that the car was running at an excessive rate of speed at the very moment the school boys were crossing the track to get to the school, and' that the motorman made no effort whatever to stop the car, though he could have seen Leroy Brown running across the track and in a position of peril in time to have stopped the car and avoided the collision, if he had looked, not only makes out a prima-facie case, but a strong case of gross negligence.

2. Plaintiff testified he was foreman of a job press room at George D. Barnard & Company’s establishment and, over the objection of defendant, testified that Leroy, before he was injured, was a strong, bright and intelligent boy and capable of preparing to follow the business he (plaintiff) was engaged, in, and. that he had intended to have him follow the same business and to put him to-work at the age of fourteen years; that boys were started in that business at four dollars a week and from that advanced to journeymen according to their ability, after serving four years, when they received from eighteen to twenty dollars a week. The ground of objection to this evidence was the testimony was too indefinite, and there was no presumption that the boy would follow in the footsteps of his father.

In Rosenkranz v. The Lindell Ry. Co., 108 Mo. l. c. 17, 18 S. W. 890, Maofaklane, J., said: “The impairment of one in his infancy is as great a damage to him, as though he had not been injured until the day he reached his majority. That he would have an equal right to compensation logically follows. This plaintiff had never earned anything, and what his ability to labor or his capacity for earning money in business pursuits will be in the future no one can tell with any certainty. It is properly held in such case, in the absence of the existence of direct evidence, that much must be left to the judgment, common experience and ‘enlightened conscience of the jurors, guided by the facts and circumstances in the case.’ ” This case is approvingly cited in Schmitz v. Railway, 119 Mo. 256, 24 S. W. 472, and in Brunke v. Telephone Co., 112 Mo. App. l. c. 628, 87 S. W. 84.

Loss of earning power is always an element of damages in a personal injury case and is ordinarily shown by the difference in the earning power of the person injured before and after the injury, but evidence of liability of promotion, or evidence to show that a plaintiff was in the line of promotion in his calling, and if promoted his earnings would have been increased, is incompetent, because remote and speculative. [8 Am. & Eng. Ency. of Law (2 Ed.), 654.] It seems to us the evidence that plaintiff had intended his son Leroy should follow his occupation and what he would likely earn as he advanced in age and experience, is entirely too speculative to furnish a basis for assessment of damages, and for that reason incompetent. But we do not think the admission of this evidence was prejudicial, for the reason the verdict was for a sum but little in ■excess of the expense plaintiff was put to for medical services, etc.,’ furnished his son, and that compensation for future earnings barely entered into the estimation of damages.

3. The court refused the following instruction asked by defendant:

“The court instructs the jury that in determining whether or not the plaintiff’s son was aware of the danger of endeavoring to cross the defendant’s track in front of the moving car, described in the evidence, and in determining whether or not he saw said car while in a place of safety, and took his chances in trying to get across, they will consider any admission on the part of the plaintiff’s son himself that he did know the danger,, and that he took his chances in an endeavor to cross the track in front of said car.”

The following instruction was given for defendant:,

“The court instructs the jury that, although they may believe and find from the evidence that the plaintiff’s son, Leroy Brown, at the time of his alleged injury was a child of eight or .nine years of age, still if they further find from the evidence that he had sufficient intelligence and understanding to appreciate the danger of going in front of, or in close proximity to the car of defendant, shoAvn by the evidence to have struck him, and if you find that he did so, and that by so doing and exposing himself to danger, the plaintiff’s son was guilty of such negligence as directly contributed to his injury, the jury will find for the defendant; and further, if the jury believe and find from the evidence that the plaintiff’s son saw the car described in plaintiff’s evidence before he attempted to cross the tracks of defendant, and then and there comprehended the danger of such crossing, yet attempted to cross said tracks and received the injury complained of by reason of such attempt to cross said tracks, then he was guilty of such negligence as prevents a recovery, and the jury will find for the defendant.”

The instruction given properly declared the law. The one refused put the hoy on an equality with an adult, in respect to exercising care for hig oavu safety, and for that reason is erroneous, and we think, also, defendant puts a strained construction on Leroy Brown’s evidence to make it appear he apprehended the danger and took chances. The hoy stated he saw the car at Penrose street, more than two hundred feet south of him, w'hen he was Avithin five feet of the street. He was running at the time and had plenty of time to cross the track had the car been running at a lawful speed, and there is no evidence to show he discovered it was running at an unlawful or excessive speed.

4. Error is assigned in the refusal of the court to give the folloAving instruction asked by defendant:

“The jury are instructed that they cannot find for plaintiff on the theory that there were children daily playing on the vacant lot mentioned in plaintiff’s evidence at the noon hour, and when school began for the afternoon, said children indiscriminately scattered across defendant’s, tracks at other points than at said alleged crossing, but the jury before they can render a. verdict for plaintiff must find from the preponderance of the evidence in this case that there was a definite crossing at the time and place above mentioned made by habit of such children as distinct, from a miscellaneous and indefinite crossing of defendant’s tracks elsewhere by children, and that said defendant’s servants knew said alleged specific and definite crossing of children at said time and place as distinct from other times and places of crossing said tracks by children.”

The point made is, the petition alleged a different point Avhere the boys were in the habit of crossing the tracks in going from the playground to the school, than the one where the evidence shows the collision took place at a point not alleged in the petition. The allegation in the petition is that the boys used as a place of crossing that part of Fair avenue which extends about one hundred feet south of Green Lea Place. This would make a customary crossing of one hundred feet wide. Duell testified the car struck the boy about ninety or one hundred feet south of Green Lea Place, so that the evidence shows the boy was struck within the alleged space used as a crossing by the school children.

No reversible error appearing, the judgment is affirmed.

All concur.