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MCDERMOTT V. SEVERE, 202 U. S. 600 (1906)

U.S. Supreme Court

McDermott v. Severe, 202 U.S. 600 (1906)

McDermott v. Severe

No. 244

Argued April 20, 23, 1906

Decided May 28, 1906

202 U.S. 600


The motorman of a trolley car which was rapidly approaching a place where a small boy was trying to assist his smaller brother to extricate his foot from the track made no effort to stop the car when he first saw the boys, supposing, as he testified, that they were playing on the track, as many boys did, until the last moment, and that they would, as usual, get off the track in time; when the car was within a few yards of the boys, he

Page 202 U. S. 601

saw and realized their situation, and did what he could to stop the car, but did not succeed in doing so and one of the boys was so injured that one of his legs had to be amputated. In the trial court, the jury found the defendant company guilty, on a special verdict, of negligence in the improper construction of the crossing and also in the management of the car, and it was consented that the jury find that the motorman did all in his power to stop the car when he saw that the boy's foot was caught. In affirming the judgment entered on the verdict and passing on questions of sufficiency of evidence to submit questions to jury, held that:

Negligence only becomes a question of law to be taken from the jury when the facts are such that fair-minded men can only draw from them the inference that there was no negligence, and if, from the facts admitted or conflicting testimony, such men may honestly draw different conclusions as to the negligence charged, the question is not one of law but of fact, to be settled by the jury under proper instructions, and in this case it was properly left to the jury to determine whether the motorman was guilty of negligence in not getting his car under control so that, in event of probable injury, he could quickly and promptly stop it.

The court properly left it to the jury to determine whether the motorman exercised reasonable care to avoid injury to the boys which the circumstances required, taking into consideration that they were children and that older people are chargeable with the duty of care and caution towards them.

An exception of general character to a charge covering a number of elements of damages will not cover specific objections which in fairness to the court should be called to its attention in order that it may if necessary correct or modify its instruction.

It was not error for the trial court, in the case of a boy who has lost a leg, to charge that the jury can consider mental suffering past and future found to be the necessary consequence of the loss of his leg. The action being one for injury to the person of an intelligent being, if the injury produced mental as well as bodily anguish, it is impossible to exclude the former in estimating the extent of the injury.

Where the court instructs that the sum claimed should not be taken as a criterion, but that it is a limit beyond which the jury cannot go, there is no error.

The facts are stated in the opinion.

Page 202 U. S. 602

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