Summary
In Gordon v. Lee, 208 Miss. 21, 43 So.2d 665 (1949), this Court reversed a judgment for the next of kin of a five year old girl in the amount of $2,000 on the ground it was wholly inadequate.
Summary of this case from Bush Construction Co. v. WaltersOpinion
No. 37163.
December 31, 1949.
1. Automobiles — child in highway — duty of motorist.
It is the duty of the driver of an automobile to keep a constant lookout for pedestrians in the highway and to anticipate their presence, and it is a question for the jury whether if such a lookout had been kept the motorist could and should have seen a five year old child as she entered upon the highway in ample time to avoid striking her.
2. Automobiles — distance ahead of vision of driver.
The fact that a motorist is short in height and the build of the automobile hood prevented him from seeing an object ahead closer than 63 feet would not at all events absolve him from responsibility for an accident to a pedestrian which occurs within 63 feet of where he is seated behind the steering wheel.
3. Death — action for wrongful death — measures of damage.
In an action for the wrongful death of a child the amount to be recovered is the value of the services of the child from the time of death up to majority, plus damages for the physical and mental anguish suffered by the child after the injury, to which may be added such gratuities as the evidence may show the parents had a reasonable expectation of receiving before or after majority and also whatever sum the child might have recovered as the present value of her own expectancy. Sec. 1453, Code 1942.
4. Death — damages — contributory negligence.
When in an action for the wrongful death of a five year old child, the defendant has been found guilty of negligence, the jury is not warranted in mitigating the damages on account of the actions of the child in contributing to the accident, a five year old child being prima facie incapable of contributory negligence.
5. Death — proximate cause — negligence of mother of child.
The negligence of the mother of a five year old child killed by automobile in highway in permitting the child to go unattended to a point across the highway knowing that the child would be likely to undertake to recross the highway in returning home, will not be said to constitute the direct or proximate cause of the death when the jury was warranted from the evidence in finding that the killing of the child could have been avoided by the defendant through the exercise of reasonable care in keeping a constant lookout for pedestrians who may chance to use the highway.
6. Death — damages — inadequate, $2,000.
A verdict for $2,000 for the wrongful death of a five year old child is inadequate and will be reversed for a new trial on that issue.
Headnotes as approved by McGehee, C.J.
APPEAL from the circuit court of Jackson County; L.C. CORBAN, Judge.
Mitchell Hill, for appellant.
For many years, the case of Cumberland Telephone and Telegraph Company v. Anderson, 89 Miss. 732, 41 So. 263, decided in November 1906 under the death statute, was accepted as the law in this state governing the recovery of damages under the death statute, the deceased party in that case being an infant child and the suit being brought by the mother of such child.
It was held that the damages which the beneficiaries named in the death statute may recover for the wrongful death of the persons named in the statute are (1) the pecuniary losses sustained by such beneficiaries through such death, (2) damages, other than mere pecuniary loss, which the beneficiaries sustained by virtue of the death of the deceased and, (3) all damages which the deceased might have recovered had he or she lived, including the present value of the expectancy of the deceased.
The assignment of errors filed in this case are many but in the last analysis, all the assignments can be grouped into one general assignment, namely, that the damages allowed plaintiffs by the jury in their verdict were wholly inadequate to compensate plaintiffs for the damages sustained by them and to permit such verdict to stand would constitute a gross miscarriage of justice.
It will be remembered in this case that there were five plaintiffs, namely, E.C. Gordon, Mrs. T. Lucille Gordon, Edward C. Gordon, Jr., Roy Albert Gordon and Betty Joyce Gordon, the father, mother, brothers and sister of the deceased. Under the death statute in question, the above five named parties will share equally in the recovery and if the $2,000.00 recovery had in this case is permitted to stand, each of the above named parties will receive the meagre and pitiful sum of $400.00 and with due deference to anyone's opinion can it be said that such a sum adequately compensates either of the parties for the damages sustained by them through the death of the deceased child? Such a sum, as far as the father is concerned would not even compensate him for the funeral and medical expenses incurred by him in trying to save the little child's life and burying her after her death.
In addition, the evidence is undisputed in this case, or better expressed, the evidence is not seriously disputed in this case that the little child after being struck down by the automobile in question lived approximately one day and a half, or approximately thirty-six hours, before she died and during most of the time intervening between the injury and death, suffered the most intense and excruciating physical and mental pain and anguish. There can be no doubt in this case as to the conscious pain and suffering of this little child for the thirty-six hour period which was only ended by the intervention of a merciful God who stepped in and closed her eyes in that sleep from which there is no awakening. Compare Wood v. Morrow, 119 F.2d 776.
H.W. Gautier and Wallace, Greaves Wallace, for appellee and cross-appellant.
POINT I. The court erred in refusing peremptory instruction requested by defendant.
Extra-judicial admission of excessive speed insufficient to create cause of action or to establish liability. Smith v. Dauber, 155 Miss. 694, 125 So. 102; Robb v. Pike, (Fla.), 161 So. 732.
Plaintiffs had burden of proof and proved only the occurrence of an accident resulting in their decedent's death. Whatley v. Boolas, 180 Miss. 372, 177 So. 1; Horn v. Guthrie, et al., (Miss.) 21 So. 813; New Orleans N.E.R. Co. v. Burge, 191 Miss. 303, 2 So.2d 825; Waddle v. Sutherland, 156 Miss. 540, 126 So. 201; McCloskey v. Duncan, (Fla.), 113 So. 250; 5-6 Huddy's Cyc. of Auto Law, p. 111, Sec. 71.
In sustaining burden of proof, possibilities and conjectures must be excluded — evidence more substantial than conjecture or possibility is necessary to support a verdict and judgment. Williams v. Lumpkin, 169 Miss. 146, 152 So. 842; New Orleans N.E.R. Co. v. Burge, 191 Miss. 303, 2 So.2d 825; Mauney v. Gulf Refining Co., 193 Miss. 421, 9 So.2d 780; Equitable Life Assur. Soc., etc. v. Mitchell, (Miss.), 29 So.2d 88.
Neither driver nor owner of automobile is insurer against accidents arising from its operation. Brown v. Yielding, et al., (Ala.), 90 So. 499; Florida Motor Transp. Co. v. Hillman, (Fla.), 101 So. 31; Rubio v. Armour Co. (Fla.) 116 So. 40; Robb v. Pike, (Fla.), 161 So. 732; 3-4 Huddy's Cyc. of Auto Law (9th Ed.) p. 37, Sec. 14.
Motorist only required to exercise reasonable care in operation of automobile. Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; Robinson v. Haydel, 177 Miss. 233, 171 So. 7; Whatley v. Boolas, 180 Miss. 372, 177 So. 1; Brown v. Yielding, et al. (Ala.), 90 So. 499; Florida Motor Transp. Co. v. Hillman, (Fla.), 101 So. 31.
Actionable fault must be predicted on action or nonaction accompanied by actual or implied knowledge of facts which make the result not only probable, but one reasonably to be anticipated. Williams v. Lumpkin, 169 Miss. 146, 152 So. 842; City of Greenville v. Laury, 172 Miss. 118, 159 So. 121; Jabron v. State, 172 Miss. 135, 159 So. 406; Columbus G.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; J.C. Penney Co., Inc. v. Scarborough, 184 Miss. 310, 186 So. 316.
Failure to anticipate a bare possibility does not constitute negligence. Williams v. Lumpkin, 169 Miss. 146, 152 So. 842; Illinois Cent. R. Co. v. Bloodworth, 166 Miss. 602, 145 So. 333; Meridian Grain Elevator Co. v. Jones, 176 Miss. 764, 169 So. 771; Shuptrine, et al. v. Herron, 182 Miss. 315, 180 So. 620; Mauney v. Gulf Refining Co., 193 Miss. 421, 9 So.2d 780.
Ordinary (reasonable) care of reasonably prudent person does not require that he should provide for or anticipate an unusual, improbable or extraordinary occurrence. Goudy v. State, 203 Miss. 366, 35 So.2d 308; Burnside v. Gulf Refining Co., 166 Miss. 460, 148 So. 219; Meridian Grain Elevator Co. v. Jones, 176 Miss. 764, 169 So. 771; Mauney v. Gulf Refining Co., 193 Miss. 421, 9 So.2d 780; 5-6 Huddy's Cyc. of Auto Law (9th Ed.) p. 113, Sec. 73, and authorities collated in the notes.
A motorist must operate his vehicle with due care under the circumstances, and, when he does that, he is not responsible for an accident which may nevertheless result. Williams v. Lumpkin, 169 Miss. 146, 152 So. 842; Brown v. Yielding, et al. (Ala.), 90 So. 499; 5-6 Huddy's Cyc. of Auto Law (9th Ed.) p. 111, Sec. 71.
No liability will attach to a motorist where he is proceeding with reasonable care on a street and a child suddenly darts in front of his vehicle so close thereto that the motorist, in the exercise of reasonable care, is unable to avoid striking the child. Gen. Contract Purchase Corp. et al. v. Armour, et al. (5th C.C.A. Miss.), 117 F.2d 147; Stover v. Stovall, (Fla.) 137 So. 249; Rubio v. Armour Co. (Fla.) 116 So. 40; Robb v. Pike (Fla.) 161 So. 732; Zoltovski v. Gzella, 159 Mich. 620, 124 N.W. 527; 3-4 Huddy's Cyc. Auto Law (9th Ed.), pp. 52, 53, Sec. 24; 1 Blashfield's Cyc. of Auto Law, pp. 260, 261, Sec. 4.
Speed of automobile governed by Section 8176, Code 1942. Speed neither a proximate nor contributing cause of accident. Gen. Contract Purchase Corp. et al. v. Armour, et al. (5th C.C.A. Miss.), 117 F.2d 157.
Right of appellee and cross-appellant to drive his automobile authorized by law and guaranteed by constitution. Teche Lines, Inc. v. Danforth, 195 Miss. 226, 12 So.2d 786.
Record contains no testimony tending to show what decedent would have been seen doing had she been observed behind or on seawall. Teche Lines, Inc. v. Pittman, 191 Miss. 735, 4 So.2d 293, 138 A.L.R. 220.
POINT II. Verdict is contrary to overwhelming weight of evidence. Equitable Life Assur. Soc., etc. v. Mitchell (Miss.), 29 So.2d 88; Yazoo M.V.R. Co. v. Lamensdorf, 180 Miss. 426, 178 So. 80; Kramer Service, Inc. v. Wilkins, 184 Miss. 483, 186 So. 625; Southern Ry. Co. v. Buse, 187 Miss. 752, 193 So. 918; Copeland v. State, (Ala.), 27 So.2d 224; Stover v. Stovall, (Fla.) 137 So. 249.
Appellee's response to brief for appellants.
Case is an action under wrongful death statute, Section 1453, Code 1942.
Statute must be strictly construed. Hasson Gro. Co. v. Cook, 196 Miss. 452, 17 So.2d 791.
Damages for deceased's pain and suffering not ordinarily recoverable by deceased's personal representative. Berryhill v. Nichols, 171 Miss. 769, 158 So. 470.
One claiming damages for pain and suffering sustained by a decedent, has burden of proving decedent was conscious after injury producing death. Standard Oil Co. v. Crane, 199 Miss. 69, 23 So.2d 297.
If appellee is liable, amount of damages awarded by jury is adequate. Jury has sole right to determine amount. Mayor, etc. of Vicksburg v. McLain, 67 Miss. 4, 6 So. 774; Avery v. Collins, 171 Miss. 636, 157 So. 695; Stevenson v. Robinson (Miss.), 37 So.2d 568.
Mitchell Hill, for cross-appellee.
It is our understanding that this court desires a reply brief from plaintiffs whether the evidence was sufficient to submit to the jury the question of defendant's negligence in operating the automobile at the time and place in question.
On such issue, it is elementary that every essential fact which the evidence tends to prove might be taken as true and proved as against the party moving to exclude or for a directed verdict.
It is proved in this record that defendant stated to several police officers of the City of Pascagoula, who could have no interest in the case, that at the time he struck the child he could not be positive whether he was looking to the south at the waters of the Gulf of Mexico or to the north at the residences along the beach which is sufficient indication that he was not looking out ahead when he struck the child. This evidence alone and of itself required that the issue of negligence be submitted to the jury.
And this statement on the part of the defendant is supported by the testimony of his wife who was sitting beside him in the car at the time the child was run down and killed to the effect "there was nothing to prevent him from seeing the child if he had been looking out ahead."
There is positive and direct testimony in this case that he, the defendant, was driving down the boulevard in question at a rate of speed of 20 or 25 miles per hour and that he was either looking to the south at the waters of the Gulf of Mexico or at the residences to the north of the boulevard and was not looking out ahead.
And the physical facts in this case clearly demonstrate the fact that the running down and killing of the child in question was due to the gross negligence of defendant in not keeping a lookout ahead along a street where he knew children were accustomed to be.
Defendant claims that due to his height and the build of the car he could not see over its hood for a distance of 63 feet in front of the car and that he was completely blacked out for that space while driving the car. If a man driving a car is blacked out at all times for 63 feet in front of him, and being cognizant of such fact, it is negligence per se for him ever to drive a car over a public boulevard at a rate of 20 to 25 miles per hour and without keeping a constant lookout ahead. Certainly, this does not require the citation of authority as it is a self-evident fact.
Since counsel for defendant sees fit to indulge in some mathematics in this case, we shall now indulge in some mathematics also. Taking his own testimony, he could have seen an object 19 inches high at 63 feet in front of his car and using the same formula or ratio, a child 3 feet and 7 inches tall could have been seen by him at a distance of 10 to 15 feet, especially if the child was standing up as the physical facts show in this case. See the cases Jaquit v. Worden, 73 Wn. 349, Pac. 33, 48 L.R.A. (N.S.) 827, and Standard Coffee Company, et al. v. Carr, (Miss.), 157 So. 687.
The rule is well stated in Swartz' Trial of Automobile Accident Cases, 2nd Ed., Sec. 609,-658 that a "motorist may be charged with negligence if he fails to see the party with whom he collides. Testimony on the part of the driver of an automobile that he did not see a pedestrian that was struck by an automobile may tend to inculpate him rather than excuse his management of the automobile especially so if the pedestrian was in front of the automobile at the time he was struck and in plain view of the driver. So, too, if by the exercise of reasonable care he might have seen the pedestrian, the driver may be held negligent. If conditions in the street obscured the motorist's vision, it is his duty to take such conditions into consideration and to have his machine under proper control so as to avoid injury to one who is so obscured from view." Holderman v. Witmar, 166 Ia. 406, 147 N.W. 926; Gray v. Batchelde, 208 Mass. 441, 94 N.E. 702; McMonagle v. Simpers, 267 Pa. St. 117, 110 A. 83; Huddy's Cyc. of Auto Law (9th Ed.) Vol. 5-6 Sec. 48, p. 76; Nordack v. Canini, 85 Pa. 2d 510; Penn. v. Pierce, 163 So. 288; McPherson v. Warren, 186 A. 615; Goodman v. Brown, 298 N.Y.S. 574; Fagg v. Carney, 165 S.E. 419; Lauer v. Roberts, 192 N.E. 101; Poole v. Brown, 89 N.J.L. 314, 98 A. 262.
We especially refer the court to the case of Hornbuckle v. McCarty, 243 S.W. 327, 25 A.L.R. 1508, a case quite similar to the case at bar in which inter alia it was said that the law charges the driver of an automobile not only with that which he actually saw but with everything which he could have seen, or should have seen, if he had been exercising due care, a principle so well settled as not to require the citation of authority.
The plaintiffs, E.C. Gordon and others, sue as parents, brothers, and sisters respectively of Rose Emeline Gordon, deceased, on account of her alleged wrongful death which was occasioned by being run over by an automobile driven by the defendant, Roy R. Lee. The trial in the Circuit Court resulted in a verdict in favor of the plaintiffs for the sum of only $2,000, for the death of this five year-old girl. There was a motion for a new trial made by the plaintiffs on account of the inadequacy of the damages allowed. There was also a motion for a new trial made by the defendant on the ground, first, that no case of liability had been made out against him by the proof in the case, and, second, that if there was sufficient evidence to be presented to the jury on liability, the verdict should be set aside as being contrary to the great weight of the evidence.
We have carefully considered this case in a number of conferences, and we have reached the conclusion that the verdict should be permitted to stand on the question of liability. The proof discloses that the defendant and his wife were driving along Beach Boulevard in the City of Pascagoula in a 1940 Plymouth automobile, and at a rate of speed which they fixed in their testimony as being approximately 15 miles per hour when the defendant's automobile struck and killed the child. Certain officers testified, however, that the defendant told them after the accident that he was driving between 25 and 30 miles per hour; and that he was either looking south at the waters of the Gulf of Mexico or to the north toward the residences which faced the paved highway and the beach, one of the witnesses claiming that the defendant said he was talking to his wife at the time. The wife testified that she was looking toward her husband as they drove along the paved highway at the place of the accident.
Both the defendant, Lee, and his wife testified that they did not see the child as it came into the highway ahead of their automobile, and did not know that they had had an accident until they felt that the car had bumped against something; that they then looked back and saw the child in the highway at a distance of approximately 15 or 20 feet behind them. The wife admitted on cross-examination that the driver could have seen the child if it had been there and he had been looking, but she further testified in substance that the child was not in the highway until it was too late for them to see it over the hood of the car.
Photographs were introduced and were made a part of the record now before us which show that the accident occurred in the south lane of the highway, while the automobile was traveling east, from 5 to 7 feet out into the highway, according to some of the witnesses, and approximately 4 feet from the south edge of the pavement, according to the testimony of the defendant and his wife; that there was a seawall between the highway and the water's edge. It is assumed in the proof that the child, which was unattended, had been playing in the sand and had climbed over the seawall and entered the highway, either by going through a vent 10 inches high and 48 inches long in a sort of a curb, 19 inches high, built of concrete, at the south edge of the pavement on the highway, or that it had climbed over this concrete curb and entered the highway.
(Hn 1) It was for the jury to consider as to whether this five-year-old child would have likely climbed over the concrete curb before entering the highway, rather than having entered the highway through the vent in the curb, and if by the former method the driver of the car should have seen it on the curb in time to avoid the accident, and if by the latter method whether or not the child, after crawling through the vent, would have had time to stand erect and then reach the point in the highway where the accident occurred without affording the driver of the automobile ample opportunity to see her, if he had been keeping a constant lookout and anticipating the presence of pedestrians in the highway as required by law. It could not have assumed that if the child crawled through the vent in the curb, it would have continued to crawl out into the highway, the child being five years of age.
(Hn 2) The defense against the charge of negligence is predicated primarily on the contention that the defendant was only 5 feet 7 inches tall, and that his vision of the top part of the vent in the concrete curb did not begin closer than 63 feet head of him, on account of his view being obstructed by the hood of the automobile and by the open airvent thereon. Whether or not a person can see the highway at close proximity to where he is seated behind the steering wheel depends upon how the car seat is adjusted, as well as on his own height. We cannot subscribe to the theory that the driver of an automobile is in no event responsible for an accident to a pedestrian which occurs within 63 feet of where he is seated behind the steering wheel.
We have concluded therefore that no error was committed in submitting the case to the jury on the question of liability and that the verdict of the jury in that behalf is not against the weight of the evidence.
(Hn 3) The plaintiffs took the appeal to this Court on the question of the inadequacy of the damages allowed for the death of the child, and the defendant has taken a cross-appeal on the question of liability on the part of the defendant. Being of the opinion that the case should be affirmed on liability, and that there is no reversible error in that regard, we are confronted with the necessity of determining whether or not a verdict of $2,000 should be permitted to stand as adequate damages to the parents, brothers, and sisters of a five-year-old girl.
Not since the year 1889, when the case of City of Vicksburg v. McLain, 67 Miss. 4, 6 So. 774, was decided, has this Court been called upon to say whether or not a verdict of $2,000 for the death of a child of tender years is adequate. At the time of that decision the sum of $2,000 was worth considerably more than at the present time. Section 1453, Code of 1942, under which the present suit is brought, provides among other things that: "In such action the party or parties suing shall recover such damages as the jury may determine to be just, taking into consideration all the damages of every kind to the decedent and all damages of every kind to any and all parties interested in the suit." (Italics ours.)
This statute further provides that: "If the deceased have neither husband, or wife, or children, or father, or mother, or sister, or brother, then the damages shall go to the legal representative, subject to debts and general distribution, and the fact that the deceased was instantly killed shall not affect the right of the legal representative to recover." This would indicate that creditors, who sustained no damages because of loss of companionship, loss of anticipated gratuities, mental anguish, etc., or prospective earnings of a child prior to majority, would nevertheless be entitled to recover something for the death of the child whether killed instantly or not, and would further indicate that where there are such surviving relatives they would be entitled to recover something more than merely compensation for the items of damages above mentioned, and for physical pain and suffering.
Moreover, in the case of Cumberland Telephone Telegraph Co. v. Anderson, 89 Miss. 732, 41 So. 263, in an opinion written by Justice Whitfield, it was stated: "Further than this, it is also true that in a suit of this sort by the mother the extent of recovery, before majority of the child killed, is the value of the services of the child from the time of death up to majority, plus such damages as the jury may fairly award as compensation for the physical and mental anguish endured by the child killed between the injury and death, to which must also be added any such gratuities as the evidence may show the mother had a reasonable expectation of receiving before or after majority, and also whatever sum the son might have recovered as the present value of his own expectancy. These four elements of damages are all proper."
In the case of New Deemer Mfg. Co. et al. v. Alexander et al., 122 Miss. 859, 85 So. 104, 107, it was said that: "The object of the statute is to furnish compensation for the injuries received to the parties suing for the death of the deceased, they having the right to sue for the value of the life under the statute. Where there is pain and suffering between the injury and death, they are entitled to recover for that also; but the death in this case was instantaneous." (Italic ours.)
It would seem that the use of this word "also" meant in addition to the value of the life of the child, and the other elements of damages which are properly to be considered, without the same being pyramided. Of course, there is no way to measure with any reasonable degree of certainty the value of the life of a child, but the question is left to the sound discretion or determination of the jury as to what amount may be just. Compare the case of Belzoni Hardwood Co. v. Cinquimani, 137 Miss. 72, 102 So. 470; Avery v. Collins, 171 Miss. 636, 639, 157 So. 695, 158 So. 552, and Stevenson et al. v. Robinson et al., Miss., 37 So.2d 568.
In the instant case the proof on behalf of the plaintiffs discloses that the child endured much physical pain and suffering during the several hours intervening between the accident and its death, although the defendant and his wife testified that it was never conscious after the accident.
(Hn 4) It may be the case that the jury considered that the proof was not conclusive to show that the death of the child in question was not the result of an unavoidable accident, and that this view may have influenced the jury in assessing the damages at only $2,000. However, having found from a preponderance of the evidence that the defendant was guilty of negligence, and therefore was liable, the jury would not have been warranted in mitigating the damages, since a five-year-old child is prima facie incapable of contributory negligence. City of Vicksburg v. McLain, supra, and Westbrook v. Mobile O.R. Co., 66 Miss. 560, 6 So. 321, 14 Am. St. Rep. 587.
(Hn 5) But it is urged on behalf of the defendant that the mother of the child was guilty of negligence in permitting it to go out to the beach unattended, knowing that it would be likely to undertake to cross the highway in returning home. The mother explained her apparent negligence in this regard by telling the jury that she thought the child was playing on the courtyard nearby. At any rate, any failure on her part to properly safeguard the safety of the child would not be attributed to the other plaintiffs, and we are unable to say that such failure would constitute the direct or proximate cause of its death, where the jury was warranted in finding that the killing of the child could have been avoided by the defendant through exercise of reasonable care in keeping a constant lookout for pedestrians who may chance to use the highway.
(Hn 6) In conclusion we deem it proper to say that while it is not in our province to determine, from the principles announced in the decisions hereinbefore cited, the approximate amount of damages that would be sufficient to adequately compensate the plaintiffs for the loss sustained by them, we feel impelled to say that a verdict for only $2,000 should not be permitted to stand as being adequate damages for the death of a little five-year-old girl. We therefore affirm the case as to liability and reverse and remand the cause for another trial on the sole question of the damages.
Affirmed on liability, reversed and remanded on the question of damages only.