delivered the opinion of the ■Court:
It is сonceded, by reason of the special findings of the jury, ■that the defendant was guilty of negligence, not only in the construction and maintenance of the crossing, but also in the management and control of the car; that error in the instructions upon both points must be shown in order to obtain a reversal of the judgment, because either finding alоne is sufficient support therefor. On the first of these issues the court charged the jury ■as follows:
“The construction there is said to be faulty. Of course in ■determining the question whether or not it is faulty, you must ■consider all the testimony in the case, the construction that has been used, and the reason that is given for making the construction in the way it was made; and yet if you find that it*283 was obviously dangerous, notwithstanding that testimony, this ■company should not be held free from blame for adopting it. 'That is one question upon which you should exercise your judgment, that is, upon the question whether or not there was obvious danger in a construction like this, — in the width of the lióle, in the depth of the hole, in view of the place where it was lоcated, and the fact that children did go on this place, which was known to the officers and employees of the defendant, — and whether or not they were in the habit of crossing at that point and playing upon that track. It is for you to determine whether ¡or not, under all of these circumstances, it was a dangerous ¡situation, and should havе been observed by the defendant.”
The court also gave the following extract from the instruction asked by the defendant and refused as a whole: “And the jury should determine the question whether the construction was negligent in the light of the facts prior to the accident, and not afterwards. And the question upon that point is not whether such an acсident was possible, but whether it was reasonably to be anticipated.”
The defendant asked the following special instruction, which was refused: “If the jury shall find, from the evidence, that the crossing or platform at the place where the accident happened was constructed in the usual and ordinary way of constructing such crossings in the District of Columbia and elsewhere, and that such construction had been in use in that and •other places for some years prior to this accident, and that no ■accident of the kind in question had occurred prior to that time in the District of Columbia or elsewhere to the knowledge of the defendant’s officers or agents, and that a rеasonably prudent man would not have anticipated such an accident from such ■construction, then the verdict should be for the defendant. And the jury should determine the question whether the construction in question was negligent in the light of the facts prior to the accident, and not afterwards. And the question upon that point is not whether such an accident was possible, but whether it was reasonably to be anticipated.”
The instructions given left the question of negligent con
The question as here presented is quite different from that in Washington Asphalt Block & Tile Co. v. Mackey, 15 App. D. C. 410, 425, upon which the appellant relies. There, in an action for injury to an employee, the evidence showed that the appliance was one сommonly in use, and considered safe; that it was not out of repair; and that the injury was due to careless handling by a fellow servant; and it was held that it was not error to refuse an instruction permitting the jury to find that the defendant had been negligent because of its failure to substitute for a reasonably safe appliance in general use anоther, and, in the opinion of the jury, a superior one.
Under an assignment of error on the refusal of the court to
As before said, the evidence in this regard was clearly not conchisive; nor was it of an exceptional character and weight that required the court to give it emphasis in charging the jury. It is to be remembered also that the customary space left to receive the flanges of the car wheels wаs proved to have been something less, even upon steam railways, than that at the place of the accident; that there was evidence tending to show that the flanges were not more than % of an inch wide at the surface of the rail, and narrowed sharply for the very short distance to their rims; that there was evidence tending to show considerably less space for the purpose at other of defendant’s crossings; and that though no similar accident had been known to have occurred before on any of the defendant’s crossings, the foot of the plaintiff’s younger brother had been caught in the same opening a few minutes before. Moreover, that nо similar accident had ever before occurred within the knowledge of the defendant — a fact upon which stress is laid in the refused instructions — is of no weight in determining the question of negligent construction. Many well-considered cases hold that such evidence is not even admissible. Hodges v. Bearse,
On the second point the defendant requested the following special instruction, which was refused: “If the jury shall find from the evidence thаt the motorman sounded his gong when
Several other instructions of like purport were asked and refused, but as they comprehend the first point also, and contain the matter relating to the construction of the crossing that has-been passed upon, they will be omitted.
The court thereupon charged the jury as follows: “On the-other question, as to whether the motorman did all that he could possibly do under the circumstances to avert this danger, you will have to consider all of the testimony, not оnly that of the plaintiff, but of the defendant, and try to reconcile it so far as-you can in order to ascertain where the fact lies. Was it prudent in that motorman, under all the circumstances of the case,, to calculate that these children would be off from that track and out of danger when he got there ? Or was it requisite for him, as a рrudent and reasonable man, to have his car under-control, so that he could stop very suddenly in case they were not, out of danger when he got there? Of course, in determining that question you are to consider what had been the habit of' children about playing at that place. You are not to attribute any contributory negligencе to the plaintiff, because this plaintiff is less than -seven years of age, and the law does, not give him discretion. Adults have to look out for children of that kind. But at the same time he may have been in the habit of jumping off and on that track in such a way that the motorman might have been justified in concluding there-would be no danger. You are to look аt all the surrounding; facts, and see whether that is true, — whether he was justified in that calculation. There was one boy still smaller than the boy who was injured, and, according to the motorman’s own.
We are of the opinion that there was no error either in giving the one instruction or refusing the other. Under all of the facts and circumstances of the case it was proper to submit to the determination of the jury the question whether the motorman, who had ample time to do so after he first saw the children on or near the track, was not guilty of negligence in failing te get his car under such control that he could have stopped it in time to avoid running over the- plaintiff after he actually saw that his foot had been caught between the board and the rail. Baltimore City Pass. R. Co. v. Cooney,
The last question for consideration arises on an exception taken to the charge of the court instructing the jury in respect ■of the-measure of damages, as follows:
’ “The jury are instructed that if they find a verdict for the plaintiff they should render a verdict in his fa.vor for such a sum (not exceeding the amount claimed in the dеclaration) as in their judgment will reasonably compensate him for the pain resulting from the injury and from the loss of his leg; for the inconvenience to which he has been put and which he will be likely to be put during the remainder of his life in consequence ■of the loss of his leg; for the mental suffering, past and future, which the jury may find to be the natural and necеssary conseqitence of the loss of his leg; and for such pecuniary loss as the direct result of the injury, which the jury may find, from the ■evidence, that he is reasonably likely to sustain hereafter in consequence of his being deprived of one of his legs.
“You must exercise your own best judgment in regard to that. Of course you are limited by the declaratiоn, and cannot exceed the amount claimed, $25,000. Of course that is not a suggestion to you that you should take that as a criterion to go by. That is only a limit, above which you cannot go. It is not a suggestion that you should go to that amount. The question is simply: AAhat is the proper compensation to this boy for this injury, in case you find a verdict in his fa.vor ? AVhat is proper compensation considering all the circumstances, — -the wound, the suffering, his probable length of life, the handicap he will sustain by reason of this wound during the remainder of his life? Make an estimate as best you can on that subject.”
Defendant asked no special instruction on this point, and
As said before, the exception to the charge was general, and not specific. And recurring to the assignment of errors, we find but two of the objections now contended for pointed out therein. These are: “(1) The jury should not have been permitted to
■consider future mental suffering in enhancement of damages; (2) the jury should not have been permitted to consider future pecuniary loss to the plaintiff by being deprived of the use of his leg.”
Under these limitations in the аssignment of error, the first and third objections before stated pass out of consideration. However, they are of no practical importance under the circumstances. The expression in the first part of the charge relating to mental suffering in the future was part of an instruction that was good in general, and the language is substantiаlly similar "to that of a charge on the measure of damages that has been held good by the Supreme Court of the United States under a general exception. Washington & G. R. Co. v. Harmon (Washington & G. R. Co. v. Tobriner)
Assuming that the second point raised in the error as assigned may be available under the general exception, we are of the opinion that it is not well taken. Damages of the kind are clearly recoverable in the case of an adult. In such a case it is within the power of the plaintiff to introduce evidence of the ordinary earning capacity of the party at the time, but still there remains a large element of uncertainty which must be left to the sound discretion of the jury. In the case of an infant of the age of the plaintiff there can be no like evidence, but it is nevertheless clear that a similar damage must occur. Rosenkranz v. Lindell R. Co.
Finding no reversible error in the proceedings on the trial, the judgment will be affirmed with costs. It is so ordered.
Affirmed.
A writ of error to the Supreme Court of the United States was allowed April I, 1905.