Fitzgerald v. Sampsell

<p>Abstract of the Decision.</p> <p>1. Carriers, § 404*—liability for negligence in starting car. Where a child of tender years was thrown from a street car to the pavement because of the starting of the car while he, with the assistance of his mother, was alighting therefrom and the car was started because of the negligent order of the conductor, held that the child was entitled to recover such damages as such starting of the car was the proximate cause.</p> <p>2. Carriers, § 390*—duty towards passenger alighting from street car. Where there was no doubt as to the act of a street car conductor in causing the car to start while a passenger was attempting to alight therefrom being negligence under any view of the duty of the carrier to its passenger, an instruction that it was the duty of the carrier to exercise for the safety of its passengers the highest degree of care “consistent with the operation of the road,” is held not to require a reversal, although erroneous, the rule being that such carrier must use the highest degree of care for the safety of its passengers consistent with the practical operation of the road.</p> <p>3. Carriers, § 390*—duty towards alighting passengers. It is the duty of a carrier, when its street car has been stopped to permit passengers to alight therefrom, to see that the same is not started while such passengers are in the act of so alighting.</p> <p>4. Instructions, § 52*—effect of use of mandatory word. An instruction regarding the elements the jury might take into consideration in determining whether plaintiff had proved his case by a preponderance of the evidence, the use of the words “should take into consideration” is held not to be reversible error, although “may” or some equivalent should have been used instead of a mandatory word such as “should.”</p> <p>5. Instructions, § 41*—province of jury as judges of facts. An instruction informing the jury that they are, “under the instructions of the court and from the evidence,” the sole judges of the facts is not faulty as making the jury “the sole judges of all questions of fact.”</p> <p>6. Damages, § 110*—where verdict not excessive for permanent injuries. Where plaintiff, of tender years, from the time of an accident had walked with a limp and had a curvature of the spine and shortening of a leg, with other permanent injuries, while he had previously been a sound, healthy boy, a verdict for twenty-seven hundred and fifty dollars held not excessive.</p>