Morel v. Lee , 182 Ark. 985 ( 1930 )

STATEMENT BY THE COURT.

This appeal comes from a judgment for damages against appellant for the negligent killing of appellee's four-year-old son while operating an automobile on the streets of El Dorado.

The facts substantially are that appellant, Mr. Morel, and his chauffeur were coming down Euclid Avenue, into town at the rate of 10 to 15 miles per hour when the injury occurred. A car was parked by the curb on the east side of the street with a Dodge sedan standing fronting it. When the sedan started to drive around the other car, the driver saw the appellant's car coming north and not thinking there was room for three cars abreast to pass, stopped his car. An eleven-year-old boy, who had been with the little boy who was killed, and another six-year-old boy, ran out from behind the standing cars and on across the street to the other side. The driver of appellant's car saw and watched him until he got across the street, fearing lest he should turn and attempt to come back. The little boy came from behind the standing cars running across the street, and at about 25 feet from the standing cars was struck and killed by appellant's car. The driver of appellant's car did not see the little fellow before the car struck him. Nor did appellant see him until just as he passed in front of the car, too late to give any warning to the driver or do anything to prevent the injury.

No witness saw the baby boy, in fact, until he was just about in front of the car.

Mr. Lasiter, assistant cashier of the First National Bank of El Dorado, testified that he lived on Euclid Avenue, opposite the Lacey house, but further south, and that Roy Lee, father of the little boy killed, lived back of his house in the same block. That his boy and the little Lee child were across the street in front of the Lacey house when he went out on his front porch and called them to come home; said he turned back and opened the screen door to go into the house and, looking back to see if the children were coming, saw his boy on the home side of the street standing at the curb, and the little Lee child, who was three and one-half or four years old, was right in front of the automobile, three or four feet in front of it. Another step or two would have taken him out of the path of the car. He was running from the east side to the west side of the street. The car was not driving at an excessive rate of speed; doesn't think the driver saw the child as he did not check the speed or make any effort to turn to the left and avoid striking him; doesn't think he felt the impact, as he went on about 25 feet after striking the boy. He stepped the distance from the Lacey driveway to where the child was struck, allowing four feet for the space occupied by the parked car, and estimated it at 25 feet. The boy was running at the rate of five or six miles an hour. Witness' boy, who was out in the street with the Lee child, was eleven years old and his other boy, who did not go across the street, was six years old. He didn't see his eleven-year-old boy cross the street after he called them. His boy could run faster than the little boy; said a Hudson car with four-wheel brakes running 15 miles per hour could be stopped in the length of the car.

The father of Roy Lee testified that he was an accountant and auditor with a salary of $275 per month since June 1, 1929, $200 a month before, and had made $400 per month when times were better; had two other children, girls, younger than the four-year-old child killed. He also testified about the probable earnings of a boy, the age of the little fellow killed, and the funeral and expenses incident thereto cost $265; that he expected to send his boy through high school, but could not contemplate a college education for him at his salary.

The court instructed the jury, giving over appellant's objections, instructions Nos. 1 and 2, and from the judgment on the verdict in appellee's favor the appeal is prosecuted. (after stating the facts). Appellant insists that the killing of the child was an unavoidable accident, and that the court should have directed a verdict and erred in giving said instructions, and in any event that the damages awarded are excessive.

No witness saw the little boy in time to give warning or do anything to prevent his being struck by the automobile, in front of which he ran following the larger boy across the street. The man who called the boys, his own eleven-year-old son and the little fellow playing with him, to come home from the opposite side of the street, and turned after starting back into the house to see if they were coming, saw him about three or four feet in front of the car when it was inevitable that he would be run down. The owner of the car didn't see him until he was in front of the car; while the driver, watching the larger boy, who was ahead of the small boy, from the time he crossed in front of the car until he was past all danger, did not see the small boy until after he had been struck by the car. The law of the case has been well settled in the several decisions of this court defining the relative rights and reciprocal duties of persons using the public streets and highways as pedestrians or in operation of automobiles and other cars or vehicles thereon, each being bound to the exercise of ordinary care for his own safety and the prevention of injury to others in the use thereof. Millsaps v. Brogdon, 97 Ark. 469,134 S.W. 632, 32 L.R.A. (N.S.) 1177; Minor v. Mapes, 102 Ark. 351,114 S.W. 219, 39 L.R.A. (N.S.) 214; Butler v. Cabe,116 Ark. 26, 171 S.W. 1190, L.R.A. (N.S.) 1915C, 702; Texas Motor Co. v. Buffington, 134 Ark. 323,203 S.W. 1013: Oliphant v. Hamm, 167 Ark. 167, 267 S.W. 563; Snow v. Riggs, 172 Ark. 835, 290 S.W. 591; Gates v. Plummer, 173 Ark. 27, 291 S.W. 816; Murphy v. Clayton,179 Ark. 225, 15 S.W.2d 391.

Ordinary care, however, is a relative term, its interpretation depending upon the facts and circumstances of each particular case; and, although drivers of automobiles and pedestrians both have the right to the use of the streets, the former must anticipate the presence of the latter and exercise reasonable care to avoid injuring them, care commensurate with the danger reasonably to be anticipated. Minor v. Mapes, supra; Snow v. Riggs, supra; Texas Motor Co. v. Buffington, supra; and Murphy v. Clayton, supra.

"However, the doctrine that drivers or owners of motor vehicles are not insurers against all accidents applies in the present state of the law to injuries to children. If no one can reasonably foresee the sudden presence of a child in the path of an automobile, so as to prevent a collision with him, the driver or his master, proceeding at a lawful speed and being otherwise in observance of the traffic regulations, will not be liable for injuries from such a collision." 1 Blashfield, Cyclopedia of Automobile Law, p. 641.

The instructions complained of, Nos. 1 and 2, the first of which contained no direction to the jury, were no more than an application of the principles of law, as herein declared, to the facts of the case as made, and no error was committed by the court in giving them.

Although it is true that the chauffeur was shown to be an experienced and careful driver, never before having injured any one by the movement of his car, and, although he was not driving it at an excessive rate of speed, he did not see the little boy before striking him, his attention being concentrated on the larger boy, who also came from behind the standing car on the west side of the street, passed in front of his car and on to the east side of the street, fearing lest he might attempt to return and be injured. He knew that people lived along the street, and that children played about and crossed over it, saw the larger boy run across the street in front of his car from west to east and watched him until he got entirely across, not looking to see whether other children were attempting to follow him across; and the jury could have found that he was negligent in so doing, not exercising reasonable care to avoid injury to the little boy, following the other one, whose presence he should have anticipated.

It is next contended that the damages awarded are excessive, and this contention must be sustained. Where the death of a child, incapable of earning anything or rendering services of any value at the time of its death, as in the present case, is the subject of the action, the value of the probable future services to its parents during its minority must, in the nature of things, be a matter of conjecture and can be determined by the jury without the testimony of witnesses. L. R. Ft. S. Ry. Co. v. Barker,29 Ark. 41; Hines v. Johnson, 145 Ark. 602, 224 S.W. 989.

In the case of St. L. I. M. S. R. Co. v. Freeman,36 Ark. 41, we held (quoting syllabus) that "the measure of damages to a parent for killing his child is the pecuniary value of his services during minority, and the cost and expense incurred by the parent on account of the injury, less the reasonable and necessary expense of raising it; the value to be such as is ordinary with children in like condition and station in life, without regard to the relationship between them, or to the parent's feelings or the child's suffering."

Our statutes (7085, C. M. Digest) provides that no child under the age of 14 years shall be employed or permitted to work in any remunerative occupation, except during school vacation when they may be employed by their parents in occupations controlled by them; and parents are required to send their children between the ages of 7 and 15 years to school (9042, C. M. Digest).

In Interurban Ry. Co. v. Trainer, 150 Ark. 19,233 S.W. 816, the court held the damages recovered $5,000, by the parents for pecuniary loss for the services of their child, a girl eleven years old, excessive and reduced the amount to $2,500. It was there said: "In determining what the pecuniary value of the services of a child of tender age would be to its parents between the time of its death and the age of maturity, the jury should take into consideration the position in life of both parents and child, the occupation of the parents, their physical condition, their circumstances, and also the sex, age, physical and mental condition of the child. While the law is liberal in allowing the jurors to voice their own opinions and conclusions as to the pecuniary value of the services without any specific proof or opinion of such value by affirmative evidence, yet such conclusion as reflected by their verdict must be predicated upon the facts and circumstances as above detailed and accord with what reasonable men in viewing such facts and circumstances would decide."

In L. R. Ft. Smith Ry. v. Barker, 33 Ark. 350, 34 Am. Rep. 44, one of our earliest cases on the subject, the court in reversing a judgment on a verdict of $4,500 as excessive, less than $2,300 being finally recovered, said: "We are satisfied that if the facts of the case were submitted to one hundred impartial men, of sound, discriminating judgment, of experience and observation in the raising of children, properly instructed in the law as to the measure of damages, ninety-nine, if not all of them, would say that the damages awarded in this case for loss of probable service were excessive, and such is our judgment." It may be observed also that the record herein shows that the jury returned a verdict for $1,000 damages on the first trial of the instant case.

The little child herein was undersized and undernourished, according to testimony, incapable of earning anything for some years, and the court is of opinion that the recovery of a greater amount herein than the judgment was reduced to in the Trainer case, supra, cannot be permitted to stand. The judgment will therefore be reduced to the said sum of $2,500, and, as modified, it will be affirmed. It is so ordered.