145 Mo. App. 295 | Mo. Ct. App. | 1910
Plaintiff, an intelligent and bright boy eleven and a half years old, received personal injuries in an office building owned and operated by defendant in Kansas City and alleges in his petition for recovery of damages, that his injuries were caused by the negligence of defendant. A trial before a jury resulted in a verdict for plaintiff for eight thousand
Defendant built a large office building at the corner of Ninth street and Grand avenue in Kansas City and began receiving tenants before the building was entirely finished. Among these early tenants was Mr. Marley, one of plaintiff’s lawyers, who rented office rooms in the west wing near its south end on the ninth floor. The building consisted of two wings, the directions of which lengthwise are north and south, joined together at their north ends by the main body of the building, the directions of which are east and west. The passenger elevators, four in number, are on the north side of the body of the building and midway between the wings. Access to Marley’s office from the elevators was afforded by an east and west hall on which the elevators opened and which, at the ends, connected with and terminated at the respective hallways which, running north and'south, divided and afforded access to the offices in the wings. The hallway in the west wing does not end at its junction with the main hallway but continues north 6 1-2 feet beyond the north line of the latter hallway and ends at the entrance to the freight elevator. This construction gives that elevator the appearance of being at the end of a small alcove but, to a person walking north along the wing hallway, the entrance to the freight elevator is prominent, since it closes the north end of the hallway and is in view until the turn into the main hall is made.
Plaintiff accompanied his mother to the offices of Mr. Marley. After transacting the business which brought her there, Mrs. Shortridge started to leave but at the door of the office remembered something she had forgotten to say and stopped for further conversation.
The negligence averred in the petition is that “this plaintiff was so injured as aforesaid by the carelessness and negligence of the defendant, in that it maintained said elevator shaft and said double doors and operated said elevator, in the manner and in the conditions aforesaid, there and then well knowing that .the said elevator, both standing still and in motion, and said ele
The two main propositions advanced by defendant in support of its contention that the jury should have been instructed to return a verdict in its favor are, first, that the evidence fails to disclose negligence on the part of defendant and, second, that it does show that the injury was caused by negligence in law of the plaintiff.
If plaintiff were an adult, there could be no question about the soundness of defendant’s position with respect to both of these propositions. The only motive that could have prompted anyone to put his head into one of the openings left in the elevator doors would have been that which actuated plaintiff — mere curiosity. An elevator shaft is a place of danger and for a person voluntarily to thrust his body into the path of the car would be negligence as a matter of law that would deprive him of any cause of action on account of the resultant injuries. In leaving the panels open, defendant was under no duty to anticipate that a mature person might do a thing so foolish; and, since it is axiomatic in the law of negligence that there can be no negligence where there is no breach of duty (Witte v. Stifel, 126 Mo. 295), it follows that plaintiff would have no negligence of defendant on which to found a cause of action, were it not for the fact that plaintiff is not an adult but, when injured, was a boy of tender years, whose rights and responsibilities with respect to the question of the duty defendant owed him as well as of the question of his own negligence are to be measured by the principles and rules pertaining to persons of immaturity.
The views expressed were recognized as sound by counsel for plaintiff who, in drafting the petition,
This was a large office building tenanted chiefly by lawyers and real estate agents. Its public halls and corridors were not intended to be used by children as a playground nor was it tó be thought that small children would go into the building at all except in company with grown persons. But we think the triers of fact were entitled to indulge the conclusion that a reasonably careful and prudent person in the situation of defendant should have thought of the likelihood of small children being brought into the building by their parents and suffered to go into the public halls while the business of the visits Avas being transacted and, if this is so, it follows that defendant was duty bound to keep the public halls and corridors under its control free from pitfalls and alluring snares. Curiosity is perhaps the most dominant of youthful impulses and it would he against common knowledge to suppose that a child al
Among the authorities consulted in reaching this conclusion are the following: Miller v. Peck Dry Goods Co., 104 Mo. App. 609; Shaw v. Goldman, 116 Mo. App. 332; Siddall v. Jansen, 168 Ill. 44; Mulaney v. Spence, 15 Abbott’s Pr. 323; Dickson v. Waldon, 135 Ind. 507, 34 N. E. 506; Railway v. Flexman, 103 Ill. 564; Colo. Mortgage Co. v. Rees, 21 Colo. 440, 42 Pac. 42; Price v. Water Co., 58 Kans. 554, 50 Pac. 450; O’Brien v. Tatum, 84 Ala. 186, 4 So. 158; Rosenbaum v. Shoffner, 98 Tenn. 624, 40 S. W. 1086.
Passing to • the question of plaintiff’s conduct, we hold that the issue of contributory negligence in the light of all the facts and circumstances in evidence is an issue of fact and not of law. Defendant cites many cases in support of its argument to the contrary, among which we mention: Mann v. Railway, 123 Mo. App. 491; Walker v. Railroad, 193 Mo. l. c. 482; Spillane v. Railway, 135 Mo. l. c. 425; Payne v. Railroad, 136 Mo. 562; Herdt v. Koenig, 137 Mo. App. 689.
It is common enough to find cases where children — ■ some younger than plaintiff — were pronounced guilty in law of contributory negligence, but in all such cases it will be found that the danger was so imminent and certain that even a child should have realized what it
Objection to the instruction on the measure of damages and the complaint that the verdict and judgment are excessive call for a recital of the injuries sustained by plaintiff. His face was mashed down on the hard edge of the door with the result that the bridge of his nose was so fractured that it is permanently flattened. About half way back the tongue was almost entirely severed. Eight front teeth (four above and four below) were knocked out and the alveolar processes (tooth sockets) were destroyed. There were severe cuts and lacerations on the face one of which extended through the nasal septum. Skillful surgery did much to aid nature in repairing the damage, but according to the evidence of plaintiff, he is greatly disfigured by the loss of the bridge of his nose and by the caved-in appearance of his mouth. Later on, the latter disfigurement may be removed in part by dental surgery and the installation of bridge work. Plaintiff has suffered great pain and anguish both physical and mental and, no doubt, will suffer a great deal more in the future. The in
In the case last cited, the Supreme Court of Illinois say: “The mental pain that comes from the contemplation of a maimed body and the humiliation of going through life in a crippled condition is too remote to be considered an element of damage. The mental pain that may be considered and allowed for in this class of cases is such as is the direct result or concomitant of the physical pain suffered. Mental pain is always an attendant upon severe physical pain — such is the relation of mind and body — and the mental pain that is the direct and necessary result of the physical pain, but not otherwise, is a proper element of damages in personal injury cases.” [C. C. Ry. Co. v. Conevin, 72 Ill. App. 81]
And in Railroad v. Hetzer, supra, Sanborn, C. J., speaking for the court, says: “The rule which has been adopted by this court, however, and the rule which seems to us the better one, is that in actions for personal injury, the plaintiff may recover for the bodily suffering and the mental pain which are inseparable and which necessarily result from the injury. But mortification or distress of mind from the contemplation of the crippled condition and of its effect upon the esteem of his fellows, that mental pain which is separable from
Our attention is not called to any case in this State dealing with the precise question. “The general rule is that pain of mind, when connected with bodily injury, is the subject of damages but it must be so connected in order to be included in the estimate.” [Schmitz v. Railway, 119 Mo. l. c. 277.] In Heiberger v. Tel. Co., 133 Mo. App. 45, we held it was immaterial whether or not the mental pain came through the battery. It was. sufficient to know that it came along with it. as one of the natural concomitants. The distinction sought to be made, in the cases to which we have referred, between mental pain caused by physical pain and mental pain produced by the bitter knowledge that the victim will be maimed or disfigured for life is more refined and subtle than it is practical or humane. How can it be said that one is more remote and intangible than the other? Both are real, substantial, natural consequences of the injury that caused the disfigurement. It is just as certain that the injured person will be oppressed by a sense of humiliation and mortification over the despoiling of his body as it is that he will suffer mental anguish as a result of his physical pain. The jnry can understand the nature and extent of the one as well as of the other and estimate the compensation of each with equal exactness. To deprive plaintiff of this element of his damages would be violative of the fundamental rule that gives to the plaintiff, injured by the negligence of the defendant, full and .fair compensation for the actual damages suffered.
The Supreme Court of the United States approved and applied the rule we are stating in the following excerpt from the opinion delivered by Justice Day in McDermett v. Severe, 202 U. S. 600: “Furthermore, an
And in Express Co. v. Wahl, 168 Fed. 848, the U. S. Circuit Court of Appeals for the Sixth Circuit refused to follow the decision of Judge Sanborn in the Hetzer case and followed the decision of the Supreme Court to which we have just referred. We conclude that the objection to the instruction is not well taken.
By remitting four thousand dollars from the verdict, plaintiff confessed its excessiveness to that extent. We find no warrant in the record for saying that the jury was actuated by passion or prejudice or any improper motive and, reduced by the remittitur, the verdict and judgment do not impress us as being excessive. We have examined the other assignments of error which are made the subjects of special notice in the briefs, but none of them appears to be of sufficient merit to call for discussion here. The case was tried without prejudicial error and, it follows that the judgment should be affirmed.
It is so ordered.