118 Cal. 55 | Cal. | 1897
Action by the father to recover damages resulting from the death of his infant son, alleged to have been caused by the negligence of defendant in running over him with one of its electric cars.
Judgment was for plaintiff, and defendant appeals therefrom and from an order denying it a new trial.
1. Appellant devotes a considerable portion of its brief in an effort to convince ns that the evidence fails to show apiy negligence on the part of defendant. The task has proven "fruitless.: An examination of the evidence discloses a substantial conflict upon that issue, however much it may be said to preponderate in defendant’s favor. Much of counsel’s argument in this behalf is expended in endeavoring to demonstrate that the two witnesses whose testimony tends to create the conflict were wholly unworthy of credence, and that therefore the evidence, while apparently conflicting, is not so in substance. But the credibility of witnesses is a question for the jury, so long as the testimony which they give has a legal tendency to establish the fact, and where, as here, there is nothing so inherently or otherwise manifestly improbable in its character as to justify the court in ignoring it.
2. Appellant also contends that under the evidence the plaintiff was shown to have been guilty of contributory negligence in permitting his child to expose himself unattended and unprotected to the dangers of the street, and that that issue should have been withheld from the jury.
The evidence upon this question was in substance this: Plaintiff’s dwelling fronted on Tenth street, in the city of Oakland, about one hundred feet from Franklin street, along which ran defendant’s railway; his family consisted, at the time, of his wife, a daughter of about thirteen years, and the boy that was killed, aged four and one-half years. The father worked at his trade, and was away from home during the day; the daughter attended school, the little boy remaining at home with his mother, who did her own work. The boy was permitted to play on the sidewalk, there being no front yard, and sometimes with other boys on Tenth street in front of the dwelling, but he had been repeatedly admonished by his parents not to go to Franklin street where the' cars ran, because they knew it was dangerous, and he
On the occasion of the accident the mother was engaged in doing some washing on the back porch of the house. She testified: “I did not know for certain that the little boy was in the street at that time. He came in fifteen or twenty minutes before he was killed, and I told him not to go away. Then I went right on with my washing. I supposed he was in the house. I didn’t go right to see, just exactly right away.There was no one in the house at the time the little boy came in, and I told him not to go out. The little girl, thirteen years old, at the time was helping me on the porch washing. I did not see the accident. There was no servant employed by myself or husband about the premises. The little boy was in the house about fifteen or twenty minutes before he was killed.” The boy had gone to Franklin street, got on the defendant’s railway in front of an advancing ear, and was run over and killed.
This evidence is practically without controversy, and defendant’s claim is that it establishes negligence per se which should preclude recovery.
If the term “negligence” signified an absolute quantity or thing to be measured in all cases in accordance with some precise standard, much of the difficulty which besets courts in the solution of this class of cases would be at once dissipated. But, unfortunately, it does not. Negligence is not absolute, but is a thing which is always relative to the particular circumstances of which
Within these principles the evidence in this case cannot be said to establish negligence per se. Parents are chargeable with the exercise of ordinary care in the protection of their minor children; and whether the conduct of the mother, for which plaintiff is to be held responsible, in permitting the deceased child to be out of her sight for a period of from fifteen to twenty minutes, without satisfying herself of his whereabouts, was, under all the 'instances, a want of ordinary care, was, we think, a fairly 'ble question. (Schierhold v. North Beach etc. R. R. Co., Meeks v. Southern Pac. R. R. Co., 56 Cal. 513; 38 Am. Rep. 67; Birkett v. Knickerbocker Ice Co., 110 N. Y. 504.)
But, were defendant’s contention sustainable in this respect, it would not necessarily determine the plaintiff’s right to recover. There was evidence tending to show that when the child went upon the railway track he was a sufficient distance in advance of the approaching ear to have enabled those in charge thereof, by the exercise of ordinary care, to have stopped before striking him.
This evidence, if believed by the jury, and their verdict implies that it was, would tend to show gross negligence on the part of defendant’s servants, and justify a finding for plaintiff noN withstanding the negligence of the parents in permitting" the child to be in the street. This is upon the principle, now firmly established in this state, that a party having an opportunity by the exercise of proper care to avoid injuring another must do so,
3. Defendant complains of the action of the court in another respect affecting its defense of contributory negligence.
The court, against defendant’s objection, permitted plaintiff to testify that he had no servants, and was too poor to employ any; and in submitting the case to the jury charged them that “the fact that plaintiff is a poor man, if that be true, constitutes no ground why he is entitled to a verdict, but is a matter to be considered by you in determining whether or not he has been guilty of contributory negligence.” This action of the court is assigned as error, in that it submitted to the jury an element having no competent bearing upon the issue.
The question whether the poverty of the parents can be considered by the jury in such a case in determining the question of their negligence is one which has given rise to some contrariety of expression, both from courts and law-writers; but we think the better reasoning decidedly against its consideration. We are unable to perceive wherein the fact that a parent may or may not have the means to employ servants to look after his young children can have any relevant or competent bearing upon the question whether in any instance he has given them that degree of care which the law requires at his hands. Care, like its correlative negligence, is a relative term, and is to be judged by the circumstances as they exist, not as they might have existed under other and different conditions; and the question, therefore, is, 'What, under the facts actually surrounding him at the time, and of which he had knowledge, could reasonably be demanded of the parent^ This is a question which cannot be affected by a consideration of what he could or should have done under other circumstances. As suggested by the supreme court of Indiana in Mayhew v. Burns, 103 Ind. 339, 340, in holding the inadmissibility of such evidence: “Whether one was negligent or not in a given case must be determined by considering his or her conduct as it related to the particular circumstances of the occasion or affair out of which the case arises.
And again by the same court in the later case of Indianapolis etc. Ry. Co. v. Pitzer, 109 Ind. 179, 190, 58 Am. Rep. 387, the doctrine is reaffirmed, and it is further suggested: “Any other rule would be impracticable as well as unsound in principle. If the pecuniary condition of the parent is accepted as the standard, all is uncertain, for no definite amount of pecuniary means can be taken as a guide, since it would be impossible to determine what a parent should be worth in order to impose upon him the duty of employing nurses or attendants for his children.”
Judge Dillon, having occasion to consider this question, expresses his views thereon in this terse fashion:
“Some of the cases seem to make the liability depend upon the means of the parents, and to countenance a distinction as to contributory negligence between parents able to employ nurses or attendants, and those who are not. This distinction may bo doubted, for there is not in this country one rule of law for the rich and a different rule for the poor. It extends its protecting shield over all alike.” (Hagan’s Petition, 5 Dill. 96.)
And this court, in the very recent case of Cunningham v. Los Angeles Ry. Co., supra, in considering an instruction bearing upon the same question, took occasion to say: “We think the court should have refrained from charging that the law does not require parents to keep an attendant with their young children; and that
The opposite doctrine would seem to haye been largely built up from observations made by judges in discussing the general subject of the contributory negligence of parents in eases where the question of their pecuniary condition was not directly involved. In none of the cases cited by respondent does the question appear to have arisen upon the evidence or instructions, but was suggested in the course of reasoning pursued by the appellate court. Mr. Beach (Beach on Contributory Negligence, see. 135) takes this side of the controversy; but the eases to which he refers are the same, with the exception of a recent one of the same type from Oregon (Hedin v. City etc. Ry. Co., 26 Or. 155), to which we are referred by respondent. Criticising these cases referred to by Beach, Mr. Patterson (Patterson’s Railway Accident Law, see. 81) says: “It has been held that poor parents of infant children are not eontributorily negligent if they do not prevent their infant children from straying into the public streets or upon the lines of highways. The judgments in those cases seem to have been largely influenced by the sentimental reflections of the judges upon the poverty of the plaintiffs, and their consequent inability to employ servants to watch their children, and the hardship of requiring them to keep those children within doors when they could not safely go abroad; but those learned judges failed to give due weight to the consideration that the railway was not responsible for the acts of the parents in bringing the children into the world, nor for that degree of misfortune which retained those parents in a condition of more or less want, and that there is no rule of law nor principle of justice which compels railways to insure the public against the necessary incidents of poverty, nor which entitles people, either poor or rich, to make at the expense of railways profitable speculations out of the deaths of the children whom their own neglect of parental duty has exposed to peril.”
In Mayhew v. Burns, supra, referring to this same line of cases,
After a careful review of the authorities we are clearly of the opinion that the question of the parent’s negligence in any given case cannot be made to turn upon the state of his finances, and that the rulings of the court below in this respect were erroneous.
Plaintiff contends that, if wrong, the rulings did not constitute prejudicial error for the reason, suggested above, that there was evidence entitling plaintiff to recover notwithstanding any- question of contributory negligence. Whether that be true or not we need not decide, since there must be a new trial upon another ground.
4. It is claimed that the verdict was so excessive as to show passion or prejudice by the jury in its verdict, and this contention must be sustained.
There was no averment or evidence of peculiar or special damages, nor of a right to exemplary or punitive damages, the plaintiff’s cause of action resting solely upon his right to recover for the loss of the services of his child resulting from its death. The evidence simply tended to show that the boy was four and a half years old; was an ordinarily bright, healthy, affectionate, and obedient child; with an expectancy of life which, if realized, would have carried him considerably beyond the age of majority.
Upon the evidence and these instructions the jury gave a verdict for six thousand dollars.
We think it quite manifest, upon its face, that the verdict was actuated by something other than a consideration of the evidence. Under no conceivable method or rule of compensation permissible under the evidence could such a result have been attained. There was nothing to indicate that the value of the child’s services would have been greater than that of the ordinary boy of his age, assuming that such a fact would have been pertinent. He was a mere infant, and for many years at best, under ordinary conditions—and it is by such we must judge—he would have remained, however dear to their hearts, a subject of expense and outlay to his parents, without the ability to render pecuniary return. And common experience teaches further that, even after reaching an age of some usefulness, he yet would continue for the better part of his remaining years of minority more a source of outgo than of income. When we regard the probable number of years to be taken in his schooling, in this day of general desire and necessity for education and knowledge, comparatively little valuable time would be left to be devoted to the service of the parent.
But assuming that the deceased would have been set to useful and valuable employment of some appropriate character as early as ten years of age, which is unusual, at no average rate of income or wages which he could reasonably have earned would it be at all probable that in the time intervening his majority he could have earned, over and above the cost and expense of his maintenance, the very large sum given by the verdict.
From these considerations we think it obvious, as contended, that the verdict was prompted by improper motives on the part of the jury.' While it is the province of the latter to estimate the extent of the injury, the right is not arbitrary, but must be justly exercised within the evidence. And when it is apparent that the award “is obviously so disproportionate to the injury proved as to justify the conclusion'that the verdict is not the result of the cool and dispassionate discretion of the jury/’ it will be set aside. (Morgan v. Southern Pac. Co., 95 Cal. 510; 29 Am. St. Rep. 143; Tarbell v. Central Pac. R. R. Co., 34 Cal. 623; Sloane v. Southern Cal. Ry. Co., 111 Cal. 668, 687; St. Louis etc. Ry. Co. v. Robbins, 57 Ark. 377; Chicago etc. Ry. Co. v. Bayfield, 37 Mich. 205, 215; Potter v. Railroad Co., 22 Wis. 615.)
5. The remaining points call for no extended notice.
We discover no material error in the refusal of the court to require plaintiff to elect upon which of the two separate aver-ments of damage he would rely. They were not properly the subjects for separate averment, the loss of society, comfort, etc., being but an element in estimating the value of services. The objection to the manner of pleading might perhaps have been reached by a demurrer for uncertainty or ambiguity.
The instruction refused on the subject of exemplary or punitive damages was, we think, substantially covered in the charge of the court; the other instruction refused did not correctly state the law.
The judgment and order are reversed and the cause remanded for a new trial.
Hearing in Bank denied.