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the testimony is undisputed that children were in the habit of playing at and near this crossing; that they were at the time of the injury in full view of the motorman at least four hundred feet away, at which distance he admits he saw the boys. It was apparent that one of the boys was right upon the track. The jury may have found from the testimony, and the court could not have disturbed that conclusion, that the motorman acted upon the assumption that the boys would get off the track, and though running at a speed of eight to ten miles per hour, made no effort to get his car under control or to stop it, until he saw the boy's foot was caught, when it was too late to do otherwise than run over him. The car, running with electric power, could have been controlled and taken well in hand so as to be readily stopped at the crossing.
This court in Union Pacific Railroad Co. v. McDonald, 152 U. S. 262, 277, quoted approvingly from Judge Cooley in a Michigan case: “Children, wherever they go, must be expected to act upon childish instincts and impulses; and others who are chargeable with a duty of care and caution towards them must calculate upon this, and take precautions accordingly.” This view is supported by other well considered cases. Powers v. Harlow, 53 Michigan, 507, 514; Camden Interstate Railway Co. v. Broom, 139 Fed. Rep. 595; Forestal v. Milwaukee Electric Railway Co., 119 Wisconsin, 495; Strutzel v. St. Paul City Railway Co., 47 Minnesota, 543; Gray v. St. Paul City Railway Co., 87 Minnesota, 280.
This is not a case of a sudden and unexpected coming of children upon a track. The jury may have found that if the motorman had acted prudently in view of the signals and warnings to stop, which the testimony tends to show were given, and the full view he had of the boys at the time of the accident, checked the car and kept it under control, the injury might have been avoided.
We think, upon principle and authority, the court properly left to the jury to find whether the motorman exercised that reasonable care to avoid injury to the boy which the circum
stances of the occasion required. And to have given an instruction as requested by the plaintiff in error, which limited the duty of the motorman to sounding an alarm in time for the boy to get off the track, and to act upon the presumption that he would do so until he found it was impossible for the plaintiff to remove his foot, would have been an unwarranted charge.
It is further urged that the court erred in instructing the jury upon the question of damages. Upon this point the court said:
"The jury are instructed that if they find a verdict for the plaintiff they should render a verdict in his favor for such a sum (not exceeding the amount claimed in the declaration) as in their judgment will reasonably compensate him for the pain resulting from the injury, and for the loss of his leg; for the inconvenience to which he has been put, and which he will be likely to be put, during the remainder of his life, in consequence of the loss of his leg; for the mental suffering, past and future, which the jury may find to be the natural and necessary consequence of the loss of his leg, and for such pecuniary loss as the direct result of the injury which the jury may find from the evidence that he is reasonably likely to sustain hereafter in consequence of his being deprived of one of his legs."
The court's attention was not called to any particular in which this charge which covers a number of elements of damages was alleged to be wrong, only a general exception was taken to the charge as given in this respect. It has been too frequently held to require the extended citation of cases that an exception of this general character will not cover specific objections, which in fairness to the court ought to have been called to its attention, in order that if necessary, it could correct or modify them. A number of the rules of damages laid down in this charge were unquestionably correct; to which no objection has been or could be successfully made. In such cases it is the duty of the objecting party to point out specifically the part of the instructions regarded as erroneous.
Baltimore & Potomac Railway Co. v. Mackey, 157 U. S. 72, 86.
It is now objected that to permit a recovery for a pecuniary loss as covered in the instructions would allow the infant plaintiff to recover compensation for his time before as well as after he has reached his majority, and that during infancy his father is entitled to recover any wages be might earn. If the defendant wished the charge modified in this respect he should have called the attention of the court directly to this feature. The charge in this respect was general, permitting a recovery for a pecuniary loss directly resulting from the injury. It would be very unfair to the trial court to keep such an objection in abeyance and urge it for the first time in an appellate tribunal.
Furthermore, an objection is taken to the charge as to mental suffering, past and future. It is objected that this instruction permits a recovery for future humiliation and embarrassment of mind and feelings because of the loss of the leg. But we find no objection to the charge as given in this respect. The court said: “The jury are to consider mental suffering, past and future, found to be the necessary consequence of the loss of his leg.” Where such mental suffering is a direct and necessary consequence of the physical injury, we think the jury may consider it. It is not unlikely that the court might have given more ample instruction in this respect, had it been requested so to do. But what was said limited the compensation to the direct consequences of the physical injury.
An instruction of this character was sustained in Washington & Georgetown Railroad Co. v. Harmon, 147 U. S. 571, 584. That there might be more or less continuous mental suffering directly resulting from a maiming of the plaintiff's person in an injury of this character was probable, and where the jury was limited to that which necessarily resulted from the injury we think there can be no valid objection or just ground of complaint. Of a charge of this character, in Kennon v. Gilmer, 131 U. S. 22, 26, Mr. Justice Gray, speaking for this court, said:
“But the instruction given only authorized them, in assessing damages for the injury caused by the defendants to the plaintiff, to take into consideration ‘his bodily and mental pain and suffering, both taken together' (but not his mental pain alone'), and such as 'inevitably and necessarily resulted from the original injury.' The action is for an injury to the person of an intelligent being; and when the injury, whether caused by willfulness or by negligence, produces mental as well as bodily anguish and suffering, independently of any extraneous consideration or cause, it is impossible to exclude the mental suffering in estimating the extent of the personal injury for which compensation is to be awarded. The instruction was in accord with the opinions of this court in similar cases." We find no error in the charge in this respect.
As to the alleged error in charging the jury that damages could not be recovered in excess of the sum claimed in the declaration, the court was careful to say to the jury that the sum claimed should not be taken as a criterion to act upon, but that it was only a limit beyond which they could not go. We cannot see how the plaintiff in error was prejudiced by this instruction. The judgment of the Court of Appeals is
202 U. S.
Opinions Per Curiam, Etc.
OPINIONS PER CURIAM, ETC., FROM APRIL 17 TO
MAY 28, 1906.
No. 253. WISHKAH BOOM COMPANY, APPELLANT, v. THE UNITED STATES. Appeal from the United States Circuit Court of Appeals for the Ninth Circuit. Argued April 25 and 26, 1906. Decided May 14, 1906. Per Curiam. Dismissed for the want of jurisdiction. Haseltine v. Central Bank, 183 U. S. 130; Schlosser v. Hemphill, 198 U. S. 173; United States v. Krall, 174 U.S. 385; McLish v. Roff, 141 U. S. 661; Act of August 13, 1888, 25 Stat. 433, c. 866, sec. 1; United States v. Sayward, 160 U. S. 493, 498. Mr. Austin E. Griffiths for appellant. The Attorney General and Mr. Milton D. Purdy, Assistant to the Attorney General for appellee.
No. 631. W. E. TRENCHARD ET AL., APPELLANTS, v. F. KELL ET AL. Appeal from the Circuit Court of the United States for the Eastern District of North Carolina. Motion to dismiss submitted April 30, 1906. Decided May 14, 1906. Per Curiam. Dismissed for the want of jurisdiction. Maynard v. Hecht, 151 U. S. 324; Colvin v. Jacksonville, 158 U. S. 456; The Bayonne, 159 U. S. 687; United States v. Rider, 163 U. S. 132, 139; Chamberlin v. Peoria &c. Ry. Co., 118 Fed. Rep. 32, and cases cited. Mr. Williamson W. Fuller and Mr. Herbert Noble for appellants. Mr. F. H. Busbee and Mr. Robert M. Hughes for appellees.
No. 216. THE INTERSTATE COMMERCE COMMISSION, APPELLANT, v. THE LAKE SHORE AND MICHIGAN SOUTHERN RAILWAY COMPANY ET AL. Appeal from the Circuit Court of the United States for the Northern District of Ohio. Argued April 10