Rollo v. City Electric Railway Co.

Grant, O. J. ( after stating the facts). 1. The two principal errors relied upon for reversal are the refusal of the court to give the following requests to charge: “ It was not the duty of the motorman to make any attempt to stop tbp car until the time' when the plaintiff’s movements indicated an intention on his. part to move in the direction of the tracks. And if you find that he made every reasonable effort to stop his car as soon as the child started moving toward the tracks, he performed his whole duty, and the defendant is entitled to a verdict. “While it was the duty of the'motorman to exercise reasonable care under the circumstances shown by the proofs in this case, he was not required to anticipate that the children would attempt to cross in front of the moving car, nor was he required, to check his car in anticipation of such a movement.” An examination of the oral charge of the court shows that the substance of these. requests was given. After stating that both the plaintiff and the defendant had a lawful right to be upon the street, the court instructed the jury: ' “You are instructed that the degree of care required by a motorman in running his car, is-such care as a careful and prudent man would use under the circumstances of each case that requires care to avoid an accident. The question invariably is: What should we expect a careful and prudent man to do under the circumstances of the cáse before us ? And in applying this rule in this case, you are to consider the age and location of the plaintiff at the time-of the accident and immediately prior thereto. “In the case of an adult occupying the position of the plaintiff he could not recover in this action from the fact that his age and his discretion would operate to warn him of danger. This rule, however, does not apply in the case of this child who was only two years and a half of age at the time of the accident. Such a child has not reached the age and discretion to protect himself. This fact makes it incumbent upon the motorman having charge of the car, to take greater precaution to protect such child and the plaintiff in this case than would be required in the case of an adult similarly situated. For this [82] reason, it is important in this case that you take into consideration the situation of the parties, of the child, its age, its position or movements on the pavement and all of the surrounding circumstances, in order to determine whether the defendant, through its motorman, performed its full duty in protecting the child and in preventing this accident. “Now, gentlemen, in this connection, coming to the question of the defendant’s duties in running its car on the day in question, you are further instructed that there is no duty or obligation on the part of the defendant company, to slack or stop its cars at every time a young child, unattended by older persons, appears on the street at some distance ahead of or near a car. Such a rule applied, would, in many localities, make it practically impossible for the company to render reasonably efficient service to the public. And in this case, if you find that the motorman had taken all the precautions that a reasonably cautious and prudent man should take under the circumstances, and if, from a place that was apparently safe to a reasonably prudent man, the child suddenly rushed upon the track when it was too late for the motorman to stop the car, then the accident was unavoidable and there could be no recovery by the plaintiff.” Other language might be quoted from the charge to the similar effect. We think that the instructions were correct and carefully stated the legal rights and obligations of the parties to this unfortunate accident. See Thompson, on Negligence (1st Ed.), pp. 398, 1129; Beach on Contributory Negligence (1st Ed.), p. 395; Barnes v. Railroad Co., 49 Am. St. Rep. 400 (47 La. Ann. 1218). 2. Error is assigned upon the failure of the court in his ■oral charge to instruct the jury that they must limit plaintiff to such loss of earning capacity as would ensue after he had reached his majority. No argument is required to show that an instruction to that effect would have correctly stated the law. It is stated in defendant’s brief that the father has an action now pending to recover for the loss of his son’s services before his majority. For some reason the question was not raised upon the trial. We assume that the amount of damages was argued to [83] the jury. If so, the argument must have been based upon the theory that the plaintiff was entitled to recover for loss of services during his minority. A suggestion to the court by counsel for either side would have avoided the error. There would be considerable_force in holding that the question, not having been raised upon the trial, cannot now be raised. Tunnicliffe v. Railway Co., 107 Mich. 261; Carter v. Bedortha, 124 Mich. 548; Hewitt v. Lumber Co., 136 Mich. 110. The damage's which the plaintiff recovered during that period could not materially vary from that which the father would be entitled to recover. In either event the expense of his clothing, living, and maintenance would be deducted from the amount he would probably earn. After the point was raised by counsel for the defendant in their brief in this court, the father filed a release of all claim for such services against the defendants This action certainly released defendant from any further liability to the father. It is as good a release to the defendant as though the father had released his claim before suit was brought, or had emancipated his son. Under these circumstances we think the defendant is not entitled to a reversal of the case for an error for which it at least is partly responsible. Judgment affirmed. Montgomery, Ostrander, Hooker, and Carpenter, JJ., concurred.