[DOWNLOAD] "Burns v. Eminger" by Supreme Court of Montana ~ eBook PDF Kindle ePub Free

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eBook details

• Title: Burns v. Eminger
• Author : Supreme Court of Montana
• Release Date : January 06, 1927
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 55 KB

Description

Personal Injuries ? Motor Vehicles ? Complaint ? Sufficiency ? Children ? Contributory Negligence ? Death ? Survival of Action ? Damages ? Variance. Personal Injuries ? Cities and Towns ? Driver of Motor Vehicle Striking Child on Public Playground ? Complaint ? Sufficiency. 1. Complaint in an action for damages for injuries to and death of a child, charging that defendants servant negligently drove a truck across a playground instead of on an adjoining street and thus injured the child, failed to keep a proper lookout, neglected to have the vehicle equipped with chains, and notwithstanding the absence of chains suddenly stopped the truck on the icy grade in the playground on which the child was coasting, - Page 80 thus causing the truck to swing around and strike the child, etc., held sufficient to state a cause of action. Same ? Child Under Seven Years of Age not Capable of Being Guilty of Contributory Negligence. 2. A child under seven years of age is non sui juris and cannot, as a matter of law, be guilty of contributory negligence. Same ? Contributory Negligence ? Conflict in Evidence ? Finding of Jury Conclusive. 3. Where the evidence on the question of contributory negligence of plaintiff in a personal injury action is in conflict, the finding of the jury in favor of plaintiff as evidenced by their verdict will not be disturbed on appeal on the alleged ground that the evidence established such negligence Same ? Pleading and Proof ? Variance. 4. The complaint in a personal injury action alleged that defendants truck struck the injured child while coasting; the testimony as to whether this was so or whether the sled struck the truck was in conflict. Held, that while it was perhaps difficult to arrive at just how the contact was affected, there was sufficient evidence to sustain the allegation of the complaint and the claim of variance was not available to defendant. Same ? Death ? Survival of Action ? Damages. 5. Where a child was struck by a motor-truck while coasting in a playground, and rendered unconscious until death seven hours later, the cause of action in favor of the child existing during its lifetime survived its death, it having lived an appreciable length of time after the injury, and, the evidence having shown severe injuries, it showed damage in some amount, and death having followed, a total loss of earning capacity, as against the contention that plaintiff, the father and administrator, had not sustained any damage, and there was no evidence of pain or suffering and none as to life expectancy or probable earning capacity if the child had lived. - Page 81

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