Hoon v. Beaver Valley Traction Co. , 204 Pa. 369 ( 1903 )

Opinion by

Mb. Justice Fell,

The case could not properly have been withdrawn from the jury. The plaintiff’s son was not of an age to be charged with negligence. There was testimony that the car by which he was injured was running at a rate of twenty-five miles an hour through a populous part of the borough, near a schoolhouse, at an hour when school children were on the street, and that no notice by gong or otherwise was given of its approach to the crossing where the accident happened.

The point for charge, the refusal of which is the subject or the second assignment of error, could not have been affirmed. It leaves out of view altogether the negligence in running the car too rapidly under the circumstances, and it ends with a direction to find for the defendant, an ending so often fatal to points otherwise good. The question intended to be raised by this point was fully covered by the general charge, in which it was said by the learned trial judge : “ While negligence cannot be imputed to a child of the age of Gilbert Hoon, nevertheless it may be assumed that a child old enough to be allowed to run at large has discretion enough to avoid ordinary dangers; and that persons who have business on the streets may reasonably conclude that they are not to provide against possible danger that may result to such a child from its own wilful trespasses ; so that where a child unexpectedly and without warning runs from the pavement against a moving traction car, or in front of a moving traction car, such fact is not evidence of such negligence on the part of the street railway company as to render them liable.”

The objection that there was not sufficient evidence of the value of the child’s services or the cost of maintenance on which to base the amount of the verdict is not without force, but it cannot be sustained. The age, physical and mental condition of the child, and the circumstances in life of its parents were shown. Ordinarily this is all that can be shown. It furnishes a very unsatisfactory basis for the computation of pecuniary damage, as the chances of life and death, of health and sickness, and of the earnings of the child going to the parents, are necessarily involved in it. A verdict in such cases is always more or less conjectural, but the common experiences of life furnish some basis for a reasonable estimate. All that a trial judge can do is to state clearly the true ground of recovery, limiting it to the probable pecuniary loss, and pointing out the elements to be considered, and to permit no excessive verdict to stand. The instruction upon the subject in this case was full, clear and accurate, and was accompanied by a caution to the jury not to render a verdict for an unreasonable amount. The judgment is affirmed.