28 Ohio C.C. Dec. 386 | Ohio Ct. App. | 1915
The plaintiff, in the common pleas court, recovered a verdict and judgment against the defendant in the sum of $10,000, because of personal injuries sustained by the plaintiff. The plaintiff, Kenneth Hanaway, who sued by his next friend, was at the time of the accident a minor slightly under three years of age.
On or about the 16th day of June, 1914, he, with some other children, was playing near the corner of Utah and Fassett streets in the city of Toledo. The defendant was operating an electric car upon the tracks of The Toledo Railways & Light Company on Fassett street. At the time in question the car stopped on Fassett street just west of the intersection of Utah street, for the purpose of taking on a passenger. After the car started, and at about the time it crossed the westerly side of Utah street, it is claimed that the plaintiff was struck by the car and after being carried or dragged some distance the wheels ran over his left leg at about the ankle, so crushing the ankle and foot as to necessitate an amputation at about the shoe top.
It is claimed by the plaintiff that while the car was standing at the point where it stopped to take on a passenger, the plaintiff, with some other children, started to go across Fassett street from the north side to the south side thereof, and that they were in plain view of the motorman and conductor, and that when the plaintiff was about sixty feet in front of the car the motorman and conductor, without any notice or warning to the plaintiff who was then crossing Fassett street and about to cross the railway tracks, carelessly and negligently started
Several claims of error are made in this court. It is claimed that the court erred in its charge to the jury-upon the subject of the amount of care required of the defendant company, and complaint is especially made as to the following language:
“A street railway company in the operation of its cars is required to exercise a much higher degree of care toward a child who, owing to its immature years is incapable of realizing and appreciating the proximity of danger and the necessity of care and caution to avoid injury, than is required toward an adult whose age, knowledge and experience better enable him to look out for himself. A motorman operating a car on a street where he has reason to expect the presence of children must exercise a high degree of watchfulness and if he sees, or by the exercise of ordinary care could see a child of tender years on or near the track, he is not entitled to act on the assumption that such child will get off or stay off the track, but must • at once use ordinary care to avoid injuring him, and if by the exercise of ordinary care he might have discovered the child in time to have avoided injuring him and fails to do so, the company is liable for the resulting injuries.”
“The almost universally accepted doctrine is, that the care to be observed to avoid injuries to children, is greater than that in - respect to adults. That course of conduct, which would be ordinary care when applied to persons of mature judgment and discretion, might be gross, and even criminal negligence, toward children of tender years. The same discernment and foresight, in discovering defects and dangers, can not be reasonably expected of them, that older and experienced persons habitually employ; and therefore the greater precaution should be taken, where children are exposed to them.”
It is also claimed that the court erred in charging the jury that “a motorman operating a car on a street where he has reason to expect the presence of children must exercise a high degree of watchfulness and if he sees, or by the exercise of ordinary care could see a child of tender years on or near the track, he is not entitled to act on the assumption that such child will get off or stay off the track, but must at once use ordinary care to avoid injuring him, and if by the exercise of ordinary care he might have discovered the child in
This portion of the charge is said to be in conflict with a special instruction given before argument at the request of the defendant, being request number six, in which the jury were instructed that those engaged in the operation of the street car were not required to assume that children on the streets would run suddenly into the path of such car and they were not required to so operate their cars as to be able to stop them instantly if a child should do so. We are unable to find that the general charge contradicts or modifies the special instruction. The special instruction was an abstract proposition of law and was certainly as favorable to the defendant as it could have been made. The word “children” used therein covers a considerable range in age, and it is certainly true that the railway company is not required to stop its cars instantly if a child should suddenly and without warning run in front of the car. With a -child of the age of the plaintiff we think that the motorman is not to infer either, that the child will run in front of the car or run away from the car. At such an age a
There are some other criticisms made upon the general charge, but what we have stated we think sufficiently covers the other objections presented.
The general verdipt was signed by twelve jurors. The defendant requested a special finding of fact and the same was submitted to the jury and was answered by them, the answer being signed by nine only of the twelve jurors. The special finding of fact was as follows:
“Did Kenneth Hanaway get on- the street car track in front of the car and in plain view of the motorman operating said car and so far ahead of the car that the motorman, in the exercise of ordinary care, had time to stop the car before it struck him?” Answer: “Yes.”
The plaintiff in error contends that it was entitled to have this interrogatory answered by the unanimous vote of the jury, and that the court erred in accepting an answer signed by only nine of the twelve jurors. The plaintiff in error claims that an interrogatory of this character .can only be answered by the unanimous action of the jury.
The answer to this question could not be prejudicial in any event because the interrogatory submitted, if not answered or if answered in the negative, would not necessarily require any different judgment. We think that the pleadings and the evidence did not make it necessary that the jury find that the plaintiff was on the street car track and in front of the car in order to establish a liability upon the part of the defendant.
Misconduct upon the part of the plaintiff is charged, and it is claimed that such misconduct consisted in either the next friend of the plaintiff or his attorneys permitting the plaintiff to be upon the floor, immediately in front of the jury, during the argument of counsel for the plaintiff, walking upon one foot and one knee or upon both knees, and that such conduct upon the part of the plaintiff, so acquiesced in by the next friend of the plaintiff and his counsel, unduly aroused the sympathies of the jury. This alleged misconduct is not made manifest by the bill of exceptions, but was sought to be shown by affidavits of two jurors presented to the trial court upon the hearing of the motion for new trial, which affidavits are attached to the
Finally, it is claimed that the verdict is excessive and is not sustained by sufficient evidence. We are not prepared to say that the verdict is excessive in view of the suffering endured by the plaintiff and the fact that he will be deprived of his left foot during his entire lifetime. At the plaintiff’s age, three years, his expectancy of life, according to the Carlisle tables of mortality, was substantially fifty years. At no age is the expectancy of life materially greater than at the age of three years. This is almost the maximum period of expectancy.
The plaintiff presented three witnesses who claimed to have seen the accident. Two of these were employes of the Big Four Railroad Company, one being an engineer and the other his fireman. They were men of experience and appeared to be intelligent and fair witnesses and their evidence is
We think that the case was fairly tried and that the rights of the'plaintiff in error were at all times fully protected. The charge of the court, both before and after argument, was certainly as favorable to the company as it had the right to expect. A careful examination of the record discloses that there was no error committed during the trial suffi
Judgment affirmed.