93 W. Va. 426 | W. Va. | 1923
Plaintiff, an infant, suing by her next friend, recovered a judgment of $2500 for personal injuries suffered when she
Plaintiff at the time of the injury was about five and one-half years of age and resided with her parents in an apartment in the Murphy-Deveny Building at the inter-section of Madison Street and Hull Alley in the City of Fairmont, and when hurt was playing with other children on the sidewalk in front of the building. As the location, condition and width of the street and alley are material circumstances in connection with the accident, it is necessary to describe briefly the geographical setting.
Madison Street ascends from the Monongahela River, up a very steep hill northerly towards Adams Street near the summit. Hull Alley parallels Adams Street and crosses Madison at a point a short distance down the hill. The Murphy-Deveny Building is on the west side of Madison Street and abuts the northern line of Hull Alley. Across the street and a little above stands the Watson Hotel. Madison Street is less than thirty feet wide, according to the record.
There'were four eye-witnesses to the accident. J. S. Wade, a taxi-cab driver, was sitting in his car, which he'had parked on the right or west side of Madison Street, facing down the hill towards the entrance of Hull Alley about twenty feet distance. Albert Frum, his attention being called to the truck while attempting to cross Madison Street, was standing in the street about twenty feet from the truck in which the pipe was being hauled. Fay Hibbs, a painter, was standing in the door-way of the Murphy-Deveny Building. G. S. Constable, a defense witness, was on, the steps in front of the same .building. The accident occurred in plain view of them all and their versions of it agree in most particulars.
■ All agree that plaintiff, her younger brother, and perhaps another child were upon the sidewalk in front of the building-in which plaintiff lived, and that when injured she had her left arm around a metal electric light post which stood in the edge of the sidewalk a few feet from Hull Alley. They further
•' “As the car started off (it appears that the driver stopped the truck while considering the advisability of driving down the hill) they walked down along the sidewalk and this pipe kind of swung back to the sidewalk and they just walked along patting their hands on it, running along' after the truck, and the truck in swinging around kind of jumped and then the little girl put her arm around the post on the sidewalk and the end of the pipe struck against the post caught her arm against the lamp post. ’ ’ ■
All the other witnesses are silent concerning the patting. We will consider it later.
First. ' While counsel make no contention in argument that defendant was free from negligence, and indeed we think such negligence is patent upon the record, it is argued with some insistence that the jury was improperly instructed concerning the alleged contributory negligence of the plaintiff. We can not regard this as a consequental issue. To what circumstance of fact can defendant’s counsel apply the legal principles as to the contributory negligence of children which they set out in their brief? Plaintiff and her companions were playing upon the sidewalk in front of their own home, not in the traveled street, but upon that portion of the thoroughfare especially set apart for pedestrians. Can it be said that children in cities are never to be allowed to enjoy the out of doors, always to be housed save when under the immediate care and protection of parent or nurse? That is the argument of defendant’s instructions Nos. 1 and 12, which would impute the parents’ negligence in letting their children out to the plaintiff, and the refusal of which plaintiff claims was erroneous. We recognize no such principle. As more acceptable argument perhaps, counsel stress the evidence in regard to the “patting” which we have' quoted above. Conceded that the children, plaintiff included, did “pat” the pipes, as one witness says, what connection had that with the injury? When injured, plaintiff was standing on the walk with her arms around the post, and by testimony of the same witness, the truck swung around and “kind of jumped” and the pipes caught her arm against the pole. We know no legal principle which requires that a child of plaintiff’s age, or older person either, should have anticipated that the truck driver would so operate his vehicle as to project the pipes over the sidewalk, (one witness says three or four feet,) and violently strike a lamp post with them. True, the evidence records that a truck similarly loaded had just made the turn successfully, and had proceeded out the alley, but of this plaintiff may or
Our answer, therefore, to the first query we raised is that we find no facts upon which defendant could defend upon the ground of” contributory negligence. However, we think it appropriate, in view of defendant’s attack upon it, to quote plaintiff’s instruction No. 3, given over objection:
“The Court instructs the jury that the conduct of an infant is not of necessity to be judged by the same rules which govern that of an adult; that while it is the general rule, in regard to an adult or grown person, that to entitle such person to recover damages for an injury resulting from the fault or negligence of another, such person must have been free from fault, wuch is not the rule in regard to an infant of- tender years. The care and caution required of a child is according to its maturity and capacity wholly, and this is to be determined by the circumstances of the case and the evidence before the Jury, apd the law presumes that a child between the ages of 5 and 6 years cannot be. guilty of contributory negligence, and, in order to establish that a child of such age is capable of contributory negligence, such presumption must be rebutted by evidence and circumstances establishing her maturity and capacity.”
In our recent case of Prunty v. Tyler Traction Company, 90 W. Va. 194, 110 S. E. 570, Judge Ritz dwelt at length upon the subject of the contributory negligence of children. We therefore think it only necessary to say that, under the facts of this case, we find nothing in the instruction quoted which violates our holding in that case, and we therefore approve it.
Second. Defendant contends that the damages are excessive. In so far as the seriousness of the injury inflicted is concerned, we find little merit in this contention. The facts are that a gaping wound two inches wide and extending from the “junction of the middle and lower third of the arm, down almost to the elbow” was torn in plaintiff’s arm, ex
“The Court instructs the jury that if they find the Defendant guilty, they are, in estimating the damage at liberty to consider the health and condition of the Plaintiff before the injury complained of as compared with her present condition in consequence of said injuries, and whether Said injury is, in its nature, permanent, and. how far said injury is calculated to disable the Plaintiff from engaging in those pursuits and employ--ments for which, in the absence of said injury, she would have been qualified1 and also the physical and mental suffering to which she was subjected or may have been subjected by reason of said injuries, and to allow such damages as in the opinion of the jury will be a fair and just compensation for the injury which the plaintiff has sustained, not to exceed the amount claimed in the declaration.”
Note that the jury is to consider “how far said injury is calculated to disable the Plaintiff from engaging in those pursuits and employments for which, in the absence of said injury, she would have been qualified.” Defendant calls attention to this, and in substance argues that, since it is not shown that plaintiff was engaged in or qualified for any pursuit, the questions raised under the instruction were improper for the jury’s consideration. Defendant argues that there can be recovery only where the infant plaintiff shows by the evidence an ascertained earning capacity. This argu
Third.- Defendant complains that under plaintiff’s instructions Nos. 4 and 6 the jury were improperly instructed, that plaintiff should recover, inter alia, the expenses incurred for medical attention. We find cause for complaint on this ground. Instruction No. 6 reads in part as follows:
“The Plaintiff, if you find her entitled to recover, should be awarded compensation for all expenses actually paid or incurred for doctors ’ bills, not exceeding the amount claimed therefor in the declaration. ’ ’
Instruction No. 4 contains language of similar import. Under the recognized principle that the responsibility for the care of the minor rests in the father, the law seems well established that save for excepted cases a minor cannot recover for medical expenses in an action for personal injury. “Where the plaintiff is a minor, he cannot recover for medi
The error of the circuit court in giving these instructions, however, will not necessarily require that the verdict be set aside. In her declaration,'plaintiff claims $500 for medical expenditures. The bill of particulars shows $110; $100 to Dr. J. E. Offner, and $10 to Dr. TI. S. Keister. The evidence shows additional expenses, the amounts of which are not fixed. By testimony, not objected to, plaintiff’s parents tell of a trip to a specialist in Wheeling, and the father states: “We have had expenses ever since.” We'can not tell at what figure the jury placed these indefinite expenditures; it may be that under instruction No. 4, they allowed the full amount sued for, $500.00. If so, the verdict is excessive to that amount. This circumstance makes it impossible for us to follow the suggestion in plaintiff’s brief that we remit the sum of $110, and affirm the judgment as to the rest.
However, to preserve a judgment so plainly right so far as plaintiff’s general right of recovery is concerned, we will reverse the judgment, set it aside, and remand the cause to the circuit court of Marion County, with directions that unless the plaintiff will agree on the record to release the sum of $500 of the verdict, — as it may be that that amount,
Affirmed on condition.