City of Vicksburg v. McLain

Citations

• 67 Miss. 4

Syllabus

<p>1. Negligence. Trespasser. Child playing in street.</p> <p>A city guilty of negligence causing the death of a child eight years old while playing in a street cannot avoid liability in a suit by the parent on the ground that the child was a trespasser.</p> <p>2. Contributory Negligence. Child of tender years. Presumption of incapacity.</p> <p>A child eight years old is prima facie incapable of contributory negligence, but if he is of exceptional capacity this may be shown. Westbrook v. M. Sp O. R. R. Co., 66 Miss. 560.</p> <p>3. Same. Pleading contributory negligence. Instruction.</p> <p>In an action for the death of a child of such age, if the defendant relies upon contributory negligence of the child, he must, in order to meet the presumption of incapacity, plead the fact of exceptional capacity. Under the plea of general issue he is not entitled to an instruction as to such ■ contributory negligence.</p> <p>4. Negligence. Municipal corporation. Injury causing death of child.</p> <p>When a city in grading a street near a school, attended, by small children, has left for several months a precipitous bluff thirty or forty feet high, which from caving and other causes becomes dangerous, as is known to the authorities who neglect to repair it, and one of the school children, eight years old, while playing in the street with others, is killed by the falling of part of the bluff, the city is liable in damages for the death, though the jury may believe that the bluff was left in a reasonably safe condition when the grading ceased.</p> <p>5. Damages. Measure of. Death of child.</p> <p>Only pecuniary damages are recoverable by a parent for the negligent killing of a child, but the word pecuniary is not to be construed in a strict sense. The recovery is not to he limited to the present loss in money, but prospective advantages of a pecuniary nature may be considered.</p> <p>6. Same. Certainty of loss. Instruction.</p> <p>The same certainty of pecuniary loss is not require