Bryant Ex Rel. Bryant v. Kansas City Railways Co. , 286 Mo. 342 ( 1921 )

Action for personal injuries. Plaintiff, a child less than four years old at the time of the injury, and who sues herein by his father as next friend, was run over by one of defendant's cars on West 39th Street in Kansas City, Missouri. West 39th Street runs east and west, and the accident occurred in the block to the east of Bell Street, a north-and-south street crossing West 39th. The negligence pleaded is that covered by the humanitarian rule. As the result of the accident the left leg of plaintiff had to be amputated. Upon a trial before a jury he secured a verdict of $30,000, but upon motion for new trial the trial court required plaintiff to remit $15,000, which was done, and judgment was entered for $15,000. A number of assignments of error have been made here, and those of substance, together with the relevant facts, will be noted in the course of the opinion.

I. The appellant contends that its demurrer to the evidence should have been sustained for two reasons. First, because the petition fails to state a cause of action, and,Demurrer to secondly, because the evidence fails to showEvidence. negligence upon the part of the defendant. Of these in order.

The petition does not aver that this child, then three and one-half years old, was oblivious of his danger, in crossing from the south to the north side of West 39th Street, at the time of the accident. It is true that the petition does not so aver, but it does aver the age of the child. This was sufficient. The parents of this child brought suit against the defendant for loss of service and medical attention. [Bryant v. Kansas City Rys. Co., 217 S.W. 632.] The same point was made there, and ruled against defendant. The rule of the Kansas City Court of Appeals in that case is sound and we approve it. Such ruling is sustained by the cases in the opinion cited.

The other question requires some more of the facts. Defendant operated a double street car line on West 39th Street. The accident occurred at about 3:00 p.m. of March 7, 1917. There was no fog, but the sky was partially clouded. The little child was plainly visible by witnesses as he approached the danger point. The west-bound car which did the injury was going up a 2¼ per cent grade from Genesee Street on the east to the point of accident, about fifty feet east of Bell Street. The distance between these two north-and-south streets is about 270 feet. The position of appellant is that the child darted from behind a passing east-bound car, immediately in front of the west-bound car. If this were true, there could be no liability under the humanitarian rule, or any other rule of negligence. The trouble is that there is evidence tending to show a contrary state of facts, and upon this evidence the jury has found against defendant. The evidence conflicts as to just when the west-bound car (the car doing the injury) passed the east-bound car within the space of this block between Bell Street and Genesee Street. There is evidence tending to show that the last east-bound car passed this west-bound car at a point fifty feet west of Genesee Street. This would leave ample space for the motorman to see the little boy as he came from the south side of West 39th Street, as the point of accident is estimated at fifty to seventy-five feet east of Bell Street, and the block space at 270 feet. The car was running at a very slow speed, variously estimated at from four to ten miles per hour. It could have been, upon this up-grade, stopped very quickly, with safety to passengers. The evidence in the present record does not differ substantially from the evidence (upon this point) in Bryant v. Ry. Co., supra, and the Court of Appeals ruled that there was ample evidence upon which to take the case to the jury under the humanitarian rule. The jury could (under the evidence) find that a passing east-bound street car did not obstruct the view of the motorman, and they have so found. We conclude that there was no error in submitting the plaintiff's case to a jury for determination and that defendant's demurrer to the evidence was properly overruled.

II. The next contention is that there was error in the giving of Instruction No. I, for the plaintiff. This instruction reads:

"The court instructs the jury that if you find and believe from the evidence in this case, that plaintiff, Revis Efton Bryant, is a minor of about four years of age, and that HomerInstruction: F. Bryant, is acting as next friend of said RevisMisleading: Efton Bryant, for the prosecution of this suit, andFollowing if you further find and believe from the evidencePleadings. that on March 7, 1917, West 39th Street was one of the public streets in Kansas City, Missouri, and that on said seventh day of March, 1917, at about 3:30 p.m. thereof, said plaintiff was crossing West 39th Street, going north, at or near a point about fifty feet east of the curb line, on the east side of Bell Street, and that while on or near the tracks of defendant's street railway, and while crossing said street at said point, if so, one of the defendant's west-bound electric cars negligently and carelessly, if so, ran against plaintiff and over his left leg, thereby so injuring said left leg that it had to be, and was as a direct result thereof, amputated, and if you further find and believe from the evidence that the motorman in charge of said car saw plaintiff, or by the exercise of ordinary care and caution could have seen plaintiff on or near said track, and in a position of imminent peril of being struck by said car and oblivious of his peril, if you find he was, within reasonable time, if you find there was, by the exercise of ordinary care to have slowed up or stopped said car, and avoided said injury, if so, and without injury to the people upon said car and failed negligently so to do, if so, and that plaintiff's injury was the direct result of such negligence, if any, and that in that case your finding must be for the plaintiff and against the defendant. You are further instructed that by ``ordinary care' as used in the instructions herein, is meant such care as an ordinary prudent and careful person would exercise under the same or similar circumstances, and that by ``negligence' as used in the instruction herein, is meant, a lack or want of said ordinary care."

We regret to have to quote the whole of this instruction, but the objections are such that it should be done. In the argument on this instruction it is said:

"First. It is involved, confusing ad misleading, and is so drawn that it is likely to, and doubtless did, mislead a jury of laymen. A reading of this instruction as above set out will fully demonstrate our contention along this line.

"This instruction is also erroneous, in that it does not follow the allegations of the petition, in requiring the jury to find the plaintiff was oblivious of his peril."

A reading of the instruction does not impress us as it has counsel. It is rather verbose, but we hardly think it misleading. A very similar instruction has passed muster in our Court in Banc. [Holmes v. Ry. Co., 207 Mo. l.c. 160.]

Nor do we think the clause used therein "oblivious of his peril" makes the instruction bad, on the theory that it is broadening the issues made by the pleading. The petition was good, without the use of this expression, because a child of such tender years would have no idea of peril either imminent or otherwise. His very age made him oblivious to danger. The allegation as to his age was in fact an allegation that he was oblivious to the imminent peril. The instruction required the jury to find him to be about four years of age, and a child of that age would be oblivious of danger. As a fact he was less than four years of age. The instruction in this regard cannot be held to be so erroneous as to justify a reversal. Another complaint is that the term "imminent peril" is not defined. These are ordinary English words and require no definition. Other objections made to this instruction are without merit. The instruction fairly presents the law of the case.

III. The next objection is lodged against plaintiff's Instruction No. 2, which reads:

"If the physical facts, as shown by the evidence, in this case and common observation and experience are in conflict with and contrary to the testimony of any witness in theTestimony: case, then it is your duty to take intoConflicting consideration such physical facts and commonWith Physical observation and experience and to disregard theFacts. testimony of any such witness in conflict therewith and contrary thereto."

It is hard to grasp just the contention here, but as we gather it the complaint is that the instruction directed the jury to disregard all of the testimony of the witness, if any portion thereof conflicted with physical facts and common observation. If the instruction did this it would be error, in so far as it directed the absolute exclusion of such portions of the evidence of the witness which did not conflict with physical facts and common observation. The jury should have been left their discretion to believe or not believe such portions of the testimony of such witness as did not conflict with physical facts and common observation. This, under the rule which leaves it to the jury to determine what parts of the testimony of such witness they will accredit, when they find that he has wilfully sworn falsely in a portion of his testimony. Counsel in their argument say:

"This instruction should have stated, to correctly state the law, as we understand it, that the jury should disregard that part of any witness's testimony in conflict with physical facts or common observation. We have no fault to find with the instruction telling the jury that if the testimony of any witness is contrary to physical facts and common observation, they should take the physical facts and common observation in preference to the testimony of the witness; but we do say that the testimony of such witness on other subjects ought not to be excluded. It is true that if the jury determines that a witness testifies falsely as to one thing, they would be justified in disregarding his entire testimony, on the theory that if he was false in one he would be false in the other; but a witness might be perfectly honest, and might testify to a state of facts concerning a certain particular thing in a chain of circumstances that was a physical impossibility, and yet the jury might believe that that witness was perfectly honest in his belief, and would be perfectly willing to believe him on all other subjects."

The trouble is that counsel has placed the wrong construction upon the instruction. This instruction goes no further than to tell the jury to disregard that portion of his testimony which is found to conflict with physical facts, and common observation. The clause "to disregard the testimony of any such witness in conflict therewith and contrary thereto" refers to testimony in conflict with physical facts and common experience, and not to other portions of the testimony of such witness. It does not refer to all of his testimony, but only to such portions wherein it conflicts with physical facts and common observation. In other words we construe this instruction to be just what appellant's counsel in his argument says that it should be, under fixed principles of law.

IV. Instruction No. 3 for plaintiff is conceded to be correct, but instruction No. 4, is attacked. This instruction reads:

"You are further instructed that if you find for the plaintiff, you should allow him such a reasonable amount as you may find and believe from the evidence would fairly and justly compensate him for the injury caused by the carelessness orMeasure of negligence of defendant, if so, and for the loss ofDamages. his left leg. The total amount, if any, allowed the plaintiff cannot exceed the sum of $30,000, which is the amount sued for. The fact, however, that plaintiff sued for such sum, must in no manner influence your verdict or its amount, should you find in his favor."

The instruction is a little unfortunate in language. The plaintiff was entitled to recover for all damages to him, which were occasioned by the negligence of the defendant. Those injuries included, "the loss of his left leg," and according to the petition (1) that "plaintiff has suffered and will continue to suffer great pain and anguish of mind and body" (by reason of the loss of the left leg) and (2) "has suffered a great shock to his nervous system, and has lost and will continue to lose his natural rest and sleep, and that by reason of his age and inability to get around by reason of the loss of his leg, his body, nervous system and mind have been permanently injured and impaired and that his body and mind will not develop and grow in strength as it would ordinarily by reason of the said physical incapacity, and that his earning capacity has been totally and will be total impaired from and after the day he shall haveobtained his majority until his death."

So it does not appear from the petition that the mere loss or absence of the left leg is the sole injuries complained of by the plaintiff, as learned counsel urge in their argument in the brief. Nor is it true that the mere loss of the leg is the only injury shown by the evidence. The physician testified that prior to and after the amputation the child suffered from a "profound shock." Without detailing further evidence as to how the accident occurred, and its attendant circumstances and fearful results, it is sufficient to say that this instruction, even with the clause first above quoted, could not have been harmful. It only allowed the plaintiff damages for the injuries to plaintiff (such as the evidence showed) occasioned by the negligence of defendant.

The foregoing covers plaintiff's instructions. Defendant received all the instructions it asked. Nothing was asked by defendant more particularly limiting the recovery to the injuries proven. So far as its instructions go, there seems to be acquiescence in the one given for plaintiff on measure of damages. We mean, that whilst defendant objected to all of plaintiff's instructions, it offered none on measure of damages.

V. There are some objections to the admission of testimony but they are so technical in character, that we do notEvidence: deem them of sufficient consequence to encumber thisTechnical opinion therewith. with. The argument of counselObjections. thus classifies these objections:

"While there were some repetitions throughout this case, indulged in by both plaintiff and defendant, and while there was some immaterial testimony elicited by both sides, a reading of the abstract will show that it is fairly free from prejudicial, incompetent testimony. There are some questions and answers which we believe were prejudicial and incompetent, irrelevant and immaterial, to which we desire to call particular attention, as follows."

These following specifications we have gone over, with the impression above expressed.

VI. It is next urged there was error in the fact that the parents kept the plaintiff in and about the court during the trial. His presence before the jury is the thing objected to by defendant. At a previous trial, the weekTrial: Plaintiff's before, it appears that the child had beenPresence. offered as a witness, and of course, owing to his tender years, was excluded. At the trial from which this appeal was taken, the child was kept, most of the time, out in the hallway of the building, outside of the court-room. This, because the mother was sworn as a witness in the case, and being placed under the rule, was excluded from the court-room, and the child was with her. However, at times the jury saw him, both in this hall, and in the court-room. The evidence fails to show any undue parading of the plaintiff before the jury. He was in their presence, and was walking upon a crutch, the only way he could walk.

Because this plaintiff was too young to testify was no reason for excluding him from the court-room. He was the plaintiff in the case, and had a right to be in the court-room. We know of no court which ever excluded the parties to an action from the presence of the jury, and the authorities cited by appellant do not go so far. If they did, we would not follow them. Certain it is, that no Missouri court has so ruled. This complaint of defendant is without merit.

VII. The defendant not only objected to the presence of the plaintiff before the jury, but moved to have the jury discharged for that reason. At most the jury could butTrial: Discharging see the absent leg. But, if the plaintiff hadJury. the right to be in court when his cause was being heard, as we have ruled, this motion to discharge the jury was well ruled below.

VIII. Lastly it is contended that the verdict is excessive. In this connection it should be said that the only permanent injury to the child, as shown by the evidence, is this loss of the leg. There were other temporary injuries, but even theExcessive shock to the system is not shown to be permanent byDamages. the doctors who testified for plaintiff. There was a shock, which the jury had a right to consider, but it was temporary, so far as this record speaks. It is true that in cutting down verdicts this court has to consider the peculiar facts of each case. Especially is this true as to the character of the injuries. In the instant case the plaintiff had no right to recover for medical and similar attentions. Nor had he the right to recover for the value of his services up to the hour of his majority. For these items the mother and father have already recovered in the sum of $3000. [Bryant v. Ry. Co., 217 S.W. 632.] As to the damage to his earning capacity he must begin this claim with the day of his majority. At his age the probability of continued life is less than it would be were he older. The books recognize this view.

Up until very recently this court has never sustained a verdict for more than $10,000 for the simple loss of a limb. [Hurst v. Railroad, 280 Mo. 566, 219 S.W. l.c. 568.] Nor have we heretofore undertaken to measure these damages by the fluctuating purchasing power of the dollar, until the case of Hurst v. Railway,280 Mo. 566, 219 S.W. 566, supra. The cases wherein we have permitted more than $10,000 to stand are cases wherein the loss of the leg was combined with other injuries. We have no other permanent injuries in the case at bar.

In the instant case the fact that the loss of full and complete service begins at the age of 21 years, and the period of damage from such decreased power to work or serve, might be longer than in the cases heretofore considered and ruled, yet those cases were of adults when the $10,000 allowed covered medical attention, which is not in this case. Here the recovery is completed, so far as it will be completed, during minority, and the expenses of the recovery have been allowed the parents. In our judgment this verdict is yet some $5,000 too high and the trial court should have reduced the original judgment to $10,000 instead of $15,000, as was done. This accords with a long line of our cases, as the same are cited in the Hurst case, supra. Others could be cited of like tenor. It is, however, urged here, as it was in Hurst's case, that we should take into consideration the purchasing power of the dollar. Such would be a fluctuating rule, because the purchasing power of the dollar fluctuates. Right at this moment the purchasing power of the dollar is on a rapid increase. Next month or next year it may be much greater than now or something unforeseen might happen, and it might greatly decrease again. The point is, that there is no such stability about the purchasing power of our unit of value, as will justify the courts to adopt a rule along the line contended for by the respondent. We are satisfied with the precedents (large in number) which precede Hurst's case, and these cases exclude the idea of the fluctuating purchasing power of the medium of exchange.

We therefore affirm this judgment, if the plaintiff, will within ten days enter a remittitur in the sum of $5,000 as and of the date of the original judgment, so that the judgment may remain as $10,000, as and of the date of the original. If suchremittitur be not entered, then the judgment is reversed and the cause remanded for retrial in accordance with the views herein expressed.