City of Vicksburg v. McLain , 67 Miss. 4 ( 1889 )

Woods, C. J.,

delivered the opinion of the court.

This action was instituted by McLain, the appellee, for the recovery of damages resulting from the death of his minor child, which death, as is alleged in the declaration, occurred under these circumstances : appellant, from time to time, had been engaged in opening and grading South Madison street, in the city of Vicksburg, immediately south of and adjoining the Walnut street public school; in the prosecution of that work, appellant had dug and cut through a hill, known as Castle Hill, and instead of cutting said hill sloping, as might have been easily done, appellant cut straight through, leaving a wall, or bluff, on the south side, almost perpendicular, and thirty or forty feet in height, with the bottom of the cut on a level with the said school-yard which was situate adjacent thereto and about fifty feet away; appellant negligently allowed this hill, so cut, to be gradually undermined and become dangerous, and carelessly and negligently permitted it to stand unsupported and unprotected against falling for a long time, well knowing that the school children were in the habit of playing at and about the foot of this hill or bluff; appellee’s little son, Frank McLain, was a pupil in attendance in said school, and at the noon recess, while playing at or near the base of this bluff, and wholly unconscious of any danger, by reason of his tender age — about eight years — the top of said bluff, by reason of the negligent manner in which it had been cut, undermined, and left by appellant, suddenly broke off and fell upon the child, whereby he was killed almost instantly.

To this declaration appellant demurred, on several grounds, and the demurrer was by the court overruled. On the same day appellant pleaded not guilty. There followed a trial on this issue, with a verdict of the jury against appellant for $4000, and judgment accordingly. There was a motion for a new trial, which was denied, and an appeal taken.

It is assigned for error that the court below erred in overruling the demurrer to the declaration. The second cause of demurrer is that the deceased child was not using the street in the manner in Avhich it was intended to be used, and was a trespasser. As the briefs of neither of appellant’s counsel at all refer to this point in the case Ave deem it unnecessary to say more than that Ave concur in the opinion of the court below that the child was not a trespasser in such sense as to affect the right of the parent to recover, if it shall be made to appear that the death of the child is attributable to the negligence of appellant.

The 3d and 4th causes of demurrer raise substantially the same question, viz : Avhether deceased was exercising proper care at the time he received the fatal injuries, and Avas free from the taint of contributory negligence ?

It Avas held by this court, .in Westbrook v. M. & O. R. R. Co., 66 Miss. 560, that prima facie, a child of tender years is incapable of exercising judgment and discretion, but that evidence may be received to rebut the presumption of incapacity. Clearly the declaration, measured by this rule, was good, and these causes of demurrer are not Avell taken.

On the whole, then, we think the complainant presented a good cause of action, and the demurrer, was properly oArerruled.

The 4th, 5th, and 6th assignments of error go to the correctness of the action of the court in giving and refusing instructions on the trial below.

The 2d instruction for plaintiff below was properly given. Every statement is elementary and indisputable. The changes, suggested by appellant’s counsel, as proper to have been made by the court, are mere verbal and structural alterations, and, if adopted, would leave the instruction, in its legal aspects, substantially as it now stands.

Can it be seriously contended that if appellant left the bluff in a reasonably safe condition when it ceased its work there, yet that, if afterwards the bluff became dangerous by reason of the action of natural causes, or from undermining by digging, and the appellant had notice of such dangerous condition, and had time to repair the same, and took no precaution and used no means to prevent the bluff from falling, this would not be negligence on appellant’s part ? We think not; and yet this is, substantially, what the court charged the jury in this 2d instruction.

It is insisted by counsel that it was error in the court below to qualify defendant’s 2d instruction, which was given, by adding to it the words, “ subject to the modification contained in plaintiff’s 6th instruction.” This 6th instruction contains an abstract legal proposition, taken from an approved text-writer, and is a correct statement. The contention is that when the court informed the jury that “the word pecuniary” (in measuring the damages by a pecuniary recompense) “ is not to be construed in a strict sense, nor is the same certainty of loss required to be established as in ordinary action, and that the damages recoverable are largely prospective, and that their determination is committed to the discretion of the jury, even on very meagre and uncertain data,” the jury was mislead. We apprehend that the court only intended to say that, in cases of this character, where damages were sought by a parent for the negligent killing of a child, in using the words “pecuvniary recompense,” in characterizing the nature of the compensation, the words were not to be construed to limit the recovery to the present loss of money, but that prospective advantages of a pecuniary nature were embraced in the phrase; and, further, that the same certainty of loss was not required to be shown as in other cases where definite loss in dollars and cents might be shown with absolute certainty. This, we think, is all the instruction can be fairly held to declare; and is' manifestly correct. If the pecuniary recompense, in cases of this character, shall be limited to present money-loss, no damages, other than nominal, could ever be recovered for the negligent killing of a child of tender years. 67 Penn. 304; 24 N. Y. 473.

The 7th instruction for appellant was directed to the supposed contributory negligence of the deceased child. We have already declared, in considering the action of the court in overruling the demurrer herein, that a child of eight years is prima facie incapable of exercising judgment and discretion, but that such presumption of incapacity may be rebutted by evidence. It follows that if appellant desired to rebut this presumption by showing deceased was of exceptional capacity and capable of exercising judgment and discretion under the circumstances of the case, appellant should have so pleaded, or given notice under the general issue of the exceptional capacity of the deceased and his possession of the faculty of judgment in such degree as removed him from the class of infants presumptively held incapable of exercising discretion. Having failed to present such plea or notice, no issue involving the question of contributory negligence was before the court, and the instruction was properly refused. Westbrook v. M. & O. R. R. Co., supra.

We agree, however, with counsel for appellant that the damages awarded are excessive, and on this ground we would reverse the judgment — if appellee had not authorized and directed a remittitur here of any amount thought by us to be excessive. We are of the opinion that the damages awarded are excessive to the amount of two thousand dollars: and with a remittitur entered here by appellee of two thousand dollars, which is ordered to be done, the judgment of the circuit court is reversed and judgment will be entered here for the sum of two thousand dollars.