American Motor Car Co. v. Robbins

Morris, C. J. Appellee’s son, aged eight years and ten months, was run over and killed, on Washington Street, Indianapolis, by an automobile driven by appellant Kyle, while in the employ of appellant American Motor Car Company. This suit was to recover for loss of services of the child, caused by its death. The complaint is in two paragraphs, the first alleging that the child’s death resulted from appellants’ negligence in running the machine at a speed in violation of a chy ordinance limiting the speed to 12 miles per hour, and the second alleging that the death resulted from appellants’ negligence in running the machine at a negligently high rate of speed, to wit, in excess of 50 miles per hour. Neither paragraph alleges any wilful misconduct. There was a trial by jury, and a general verdict for appellee, with answers to interrogatories. [419] 1. [418] It is claimed the answers to the interrogatories show con419 tributary negligence of the appellee’s son, and that the court consequently erred in overruling appellants’ motion for judgment on such answers. The answers to the interrogatories show that the little boy was struck and killed on the north side of Washington Street, just west of its intersection with Bradley Avenue which runs north and south; that there was a brick building, thirty-seven feet wide fronting on Washington Street; at the northwest corner of the crossing of the streets, and in front of the building, at the street curb, there were two wagons, with horses hitched thereto; the east wagon had no covered top, while the other did; that there was a passage way between the wagons; that appellant Kyle was driving the machine west on Washington Street, and, before reaching Bradley Avenue, decreased its speed; that the machine was making a loud noise, and while it was approaching Bradley Avenue, the decedent was playing with some other boys, on the sidewalk, in front of the building; that Kyle first saw decedent in the street when the machine was only eight feet distant from him, and immediately turned the car, and endeavored to stop it; that at the time of the accident, the boy was aged eight years and ten months, of average intelligence, in the possession of all his faculties, and was of sufficient age and intelligence “to know and appreciate the risk and danger of going into the street.” Interrogatory No. 27, and answer thereto are as follows: “Did not said Devere Robbins, at and about the time said defendant Kyle had crossed said Bradley Avenue with - said automobile test car, and while 'driving in said westerly direction, along the north side of said East Washington Street in said city of Indianapolis, run from the sidewalk immediately south of said brick building and in front of the team of horses and wagon standing at the north curb of said street, and into the roadway immediately in front of said automobile being so driven by said Kyle?” A. “No.” There is no finding in relation to the width of the roadway [420] of Washington Street, or where the point of collision was, with reference to the north street curb, except that it was on the north side of Washington’Street; it is not found whether the boy entered the roadway, in the passageway between the wagons, or what, if anything, obstructed his view of the approaching car; there was no finding in regard to the speed of the machine. It cannot be said that there is such conflict between the answers and general verdict as bars the possibility of its removal by evidence which might have been given under the issues, and therefore there was no error in overruling appellants’ motion. Inland Steel Co. v. Smith (1907), 168 Ind. 245, 80 N. E. 538, and cases cited. 2. An adult resident of Indianapolis, who had ridden in automobiles, and who observed the moving of the ear in controversy as it approached the place of accident, was permitted, over appellants’ objection, to state his estimate of its speed. The witness was not qualified as an expert, and, because thereof, appellants claim that there was error in receiving the estimate. The evidence was properly admitted. Louisville, etc., R. Co. v. Hendricks (1891), 128 Ind. 462, 28 N. E. 58; 3 Chamberlayne, Mod. Law of Ev. §2086. 3. [421] 4. [420] Instruction No. 5, requested by appellants was refused. In this refused instruction, appellants endeavored to state hypothetically the facts relating to the defense of contributory negligence and requested a direction for recovery by appellants, if the jury should find the assumed facts proven. Following the hypothetical statement, the instruction concludes as follows: “Then, and in that event, his contributory negligence in so running into the roadway must defeat a recovery in this case, and if you find the facts as above set out and that the defendant, Harry Kyle did not wilfully run into said toy, then and in that event, I instruct you to return the verdict for the defendants.” (Italics ours). Unless it was the duty of the court to give [421] the instruction precisely as requested, there was no error in its refusal. Chicago, etc., R. Co. v. Pritchard (1907), 168 Ind. 398, 419, 79 N. E. 508, 81 N. E. 78, 9 L. R. A. (N. S.) 857. This instruction was misleading, because the jury might have inferred therefrom that one of the paragraphs of complaint stated a cause of action for wilful injury only, while in truth, appellee sought no recovery for such cause. Indianapolis St. R. Co. v. Taylor (1902), 158 Ind. 274, 63 N. E. 456. 5. It is contended that the court erred in refusing appellants’ requested instruction No. 7 which related to the measure of damages. Instruction No. 9, given by the court, on its own motion, substantially embraced the matters in the one refused, and consequently there was no harmful error. It is zealously insisted that the damages assessed are excessive, and that a verdict was unwarranted except for the funeral expenses of the child, and that, under the evidence, any other damages were merely speculative and conjectural. It was shown by the evidence that at the time of the accident, appellee was a laborer engaged in driving an ice delivery wagon; that his wife was somewhat of an invalid, and found it difficult to walk; that they had two other children, one two years old, and the other a boy less than fifteen years of age, then employed as a clerk in a grocery; that the decedent was sound in body, larger than the average boy of the same age, had a bright intellect, and was obedient to his parents. It also appears that he did all the household chores, such as going to the grocery, going after milk, getting kindling, and carrying in coal. The verdict was for $1,575. The funeral expenses were $152.50. 6. The action was brought under §267 Burns 1908, §266 R. S. 1881, which authorizes the father to sue for the death of a minor child. The law contemplates, where liability is established, a recovery by the father in an amount sufficient to compensate him for the pecuniary loss [422] occasioned by the child’s death. It is quite true that such damages are incapable of admeasurement by any mathematical or exact rule, and the amount must be fixed by estimate, which bears some semblance to conjecture. In the very nature of things, there can be no exact or uniform rule of admeasurement of the value of services which a deceased person would have rendered, had death not resulted. 13 Cyc. 365; Crabtree v. Missouri, etc., R. Co. (1910), 86 Neb. 33, 136 Am. St. 663, 124 N. W. 932; note to Bond v. United Railroads (1911), Ann. Cas. 1912 C 60. To a large extent the same lack of exact rule obtains in all personal injury cases, and the amount of the assessment necessarily rests in the good sense and discretion of the jury, subject to review for proper cause. 13 Cyc. 136. 7. The evidence here warranted the assessment of more than nominal damages, in addition to the amount of funeral expenses. Ohio Valley Trust Co. v. Wernke (1913), 179 Ind. 49, 99 N. E. 734; Louisville, etc., R. Co. v. Rush (1890), 127 Ind. 545, 26 N. E. 1010; City of Elwood v. Addison (1901), 26 Ind. App. 28, 35, 59 N. E. 47, and cases cited; Valparaiso Lighting Co. v. Tyler (1912), 177 Ind. 278, 96 N. E. 768. Nor can we say that the amount assessed was excessive. The youthful hands of the child had been trained in the ways of industry. He was of bright mind, and obedient. The services already rendered were of value. The mother required some one to “do chores.” If not to be done by the child, “other help must necessarily be provided to perform them.” Louisville, etc., R. Co. v. Bush, supra, 549. While the evidence here was of such nature, as appellants suggest, as might naturally arouse the sympathy or passions of a jury, we cannot say that it was swayed by any such consideration, for the amount allowed appears to us as nothing more than fair compensation. Malott v. Shimer (1899), 153 Ind. 35, 54 N. E. 101, 74 Am. St. 278; Johnson v. Chicago, etc., R. Co. (1885), 64 Wis. 425, 25 N. W. 223. [423] It is claimed the verdict is not sufficiently supported by the evidence, and especially so in regard to the question of contributory negligence. The contention cannot prevail. The verdict was a righteous one, and no error appears in the record that would warrant a reversal. Judgment affirmed.