Snit by appellee for the death of his infant son resulting from appellant’s alleged negligence. Demurrer to complaint overruled and answer in denial. Trial by jury and verdict for appellee with answers to interrogatories. Over appellant’s motion for a new trial judgment was rendered on the verdict. Appellant questions the sufficiency of the complaint and the denial of the motion for anew trial.
The complaint avers that an ancient natural water course crosses Main street, one of the principal thoroughfares in appellant city; in 1891 a water company laid a fourteen-inch main along Main street and across the water course with the top of the main level with the bed thereof; after-wards appellant improved and regraded the street and at the water course made a fill eight feet in height and through the fill constructed a culvert and negligently lowered the bed of the stream leaving about one-half of the culvert
It is the duty of a municipality to keep its streets and sidewalks in a reasonably safe condition for travel. And this duty is not fully discharged by making the traveled part of the street safe. If there are dangerous places near the usually traveled part of the street, although outside of it, it is the city’s duty to use ordinary care to protect from injury a person lawfully using the street in a reasonably prudent manner. Higert v. City of Greencastle,
It is well settled that the owner of premises is not liable for injuries from pitfalls not intended to hurt intruders, where there has been neither an express nor implied invita
In City of Indianapolis v. Emmelman,
The complaint avers that appellee did not know of the obstruction in the culvert and had no notice or knowledge of the accumulation of water at the side of the street, and that the boy’s death was caused without any fault on the part of appellee or the boy. It will certainly not be contended that a pirent, having no knowledge of any danger, was nevertheless guilty of negligence in permitting a child seven years old to go upon a public street without an attendant.
It is argued that a boy seven years of age of ordinary intelligence and experience is not conclusively non sui juris, but that he may be guilty of contributory negligence, and that as it is a question for the jury to say whether he is of sufficient understanding to be guilty of contributory negligence the complaint should aver facts from which it could be determined that he did not comprehend the danger to which he was subjected. If the child was sui juris and the facts specifically averred showed his own negligence contributed to his injury, there could be no recovery although
In Beach on Contributory Negligence (3rd ed.), §117, the author says: “It is a question of capacity, and it has .been found a very difficult question, and has been, in many courts, a very fruitful source of controversy, as to what age is sufficient to constitute an infant sui juris. Unless the child is exceedingly young it is usually left to the jury to determine the measure of care required of the particular child in the actual circumstances of .the case. Where there is no doubt as to the capacity of the child, at one extreme or the other, to avoid danger, the'court will decide it as a matter of law.” See Moynihan v. Whidden,
There is nothing averred in the complaint from which we can say as matter of law that the child was sui juris. Even if we can not go to the extent of saying that a child of seven years is not necessarily incapacitated from acting for his
It is argued that the evidence is insufficient to support the verdict, and it is first claimed there is no evidence that appellant ever lowered the bed of the stream. The question was not so much whether the city had lowered the bed of the stream as whether it had negligently maintained a culvert insufficient to carry away the water. The maintenance of the culvert in that condition for a number of years was charged as negligence, and if it permitted it to remain in that condition it is not material by whom it was originally lowered. As we have already observed the maintenance of an insufficient culvert was the proximate, though not the immediate, cause of the death. And it is argued that the condition causing the death could not have been reasonably anticipated. But«the evidence shows that the act of the city created this condition, and there is evidence to support the averments of the complaint as to the stoppage of the culvert, the action of the water at the time in question, and its tendency to attract children. “Whoever,” said the court
The fourth and fifth reasons for a new trial are that the damages are excessive; that no witness was called to value the child’s services from which the jury could measure the damages. As the father, who sues, would have been entitled to the child’s services had he lived, the law implies a pecuniary loss for which compensation may be given. The rule for determining damages where the complaint does not specifically ask for damages fdr loss of future services does not apply in this case. The complaint demands damages for the loss of future services of the child during his minority, and the jury may estimate this amount from the death of the child, his relationship to appellee, his age, physical and mental condition and ability, and the condition of appellee’s family with respect to and use for the child. The measure of damages in such a case is the value of the child’s services from the time of the death until he would have attained his majority taken in connection with his prospects in life, less the cost of his support and maintenance during that period, including such as board, clothing, schooling and medical attention. Taking all the evidence bearing upon this branch of the case we can not say that, for the death of a child seven years and three months old, a verdict for $599.95 should be set aside as excessive. Louisville, etc., R. Co. v. Rush,
Complaint is made of a statement made by tbe court in tbe presence of tbe jury. It developed upon tbe examination of a witness by appellant tbat appellee bad subpoenaed tbe same witness, but, after sbe bad related to one of appellee’s attorneys wbat sbe bad seen, counsel for appellee bad directed ber to go borne as sbe was not needed. Appellant then bad ber subpeensed, and it was as to ber examination as to these facts tbat tbe court made tbe statement tbat be did not think sucb evidence important or material. We fail to see bow jurors of average intelligence could be prejudiced or influenced upon tbe merits of tbe case by sucb a remark.
Tbe instructions given to tbe jury are quite lengthy and cover every material element in tbe case. It is a well settled rule tbat not only must each instruction be considered in its entirety but tbat all tbe instructions must be considered as a whole. When so considered they correctly state tbe law, and are as favorable to appellant as could reasonably be asked. Tbe answers of the jury to tbe interrogatories support tbe general verdict and it is not claimed by appellant’s counsel tbat they are in conflict with the general verdict. There is no error in tbe record for which tbe judgment should be reversed.
Judgment affirmed.