The facts as here stated are based on the testimony most favorable to plaintiff's right of recovery. The plaintiff at the time of the injury was 11 years of age. He was in the fourth grade at school. Fowler, the driver of the truck, asked plaintiff and his brother John, then 14 years old, to help him in delivering soft drinks from the truck he was driving, which belonged to the defendant bottling works. After making some deliveries, they went west on Michigan avenue to Lawndale avenue. Here the truck crossed Michigan and stopped just south of the crosswalk near the west curb on Lawndale to make a delivery. The plaintiff had ridden in the cab with Fowler, and John on the body of the truck. Both John and the plaintiff testify that, after delivery had been made, Fowler told plaintiff to go back of the truck and signal the traffic on Michigan avenue so that he might back the truck thereon. The plaintiff did so. A team and wagon belonging to the defendant Porath were approaching on a walk from the west, and about 15 or 20 feet from where plaintiff stood. He put up his hand as a signal for the driver to stop, and at the same time signaled for the truck to back up. The driver of the wagon did not stop. Both it and the truck approached the spot where plaintiff stood. Relying on the effect of his signal, and believing that the wagon would stop, he did not move until both the *Page 309 wagon and the truck were almost upon him. Had either of the vehicles stopped, he could easily have stepped out of the way of the other. Realizing his danger when both were within a few feet of him, he made a jump to reach the south curb of Michigan. The cause of his injury was well stated by the trial court:
"The neckyoke or tongue of the wagon, approaching in such a manner as the tongue of a wagon driven over brick paving would approach, struck him on the chest or chin and threw him to the paving in the rear end of the truck."
The driver of the truck, while denying that the boys had ridden with him that day, or that he had asked the plaintiff to signal the traffic while he backed up, admitted that they had at times assisted him in making deliveries by watching the truck so that no bottles would be stolen therefrom, and that he had occasionally paid the older brother therefor. The boys both testify that they were helping him that day, and that he gave the order to plaintiff as stated above. His truck had a mirror in the front, but was so loaded at the back that he could not see a full-grown person standing within 10 feet of the back of the truck. He therefore found it convenient to use the plaintiff to assist him in safely backing up. When he imposed the duty to signal upon this 11-year old boy, he certainly owed a duty to him to see that he was not placed in a perilous position while doing so. The signals given by the boy could have been as plainly seen, and would have been quite as effective, had he stood in line with the side of the truck, and not directly behind it. Whether Fowler's act, in view of his employment of this young boy for such a service, in backing up his truck, without regard to where the boy was or what he was doing, was negligent, was, I think, for the jury. *Page 310
Under this proof, I think it was for the jury to say whether the act of the driver of the team, in failing to stop before he came into such close proximity to the truck and the boy, was negligence on his part. The dangerous position in which the boy was standing, if he continued on his way, was plainly visible. If the testimony of the two boys be accepted as true, it cannot but be inferred that he knew that he was under no obligation to heed the signals given by the boy and felt resentment because they were given. While he need not have obeyed such signals, he was in duty bound to so drive his team as would not place the boy in a position of danger which was apparent to him.
In my opinion it cannot be said as a matter of law that the plaintiff was guilty of contributory negligence. The task he was asked to perform was one which would appeal to his boyish nature. It invested him with a power and authority he had never before possessed. He had observed traffic officers, and now found himself armed with like authority. It doubtless never occurred to him that the driver of the truck, with whom he had ridden, had no authority to make him a traffic officer. When he gave the stop signal to the driver of the wagon, he was doubtless appalled that it was not instantly obeyed. We cannot judge his conduct in remaining where he was in the street, with the wagon and truck both approaching him, by what an adult should have then done. He remained where, as he doubtless viewed it, he had been stationed by the order of the truck driver, too long. He should have sought safety earlier. But he was a boy but 11 years old, and I am not prepared to say that he did not do what the ordinary boy of that age would have done under the same circumstances. As was said in Weitzel v.Railway, 186 Mich. 7, 12:
"It may be said that he chose the wrong course, but we are of the opinion that it cannot be said as a matter *Page 311 of law that an error of judgment under such circumstances is negligence."
In 20 R. C. L. pp. 126, 127, it is said:
"The exact cautionary measures that must be taken by children cannot be expressed, of course, by any general rule; they must, in connection with the circumstances in each case, depend upon the intelligence, capacity, and judgment, which he is shown by the evidence to have possessed. Whether in any particular case the injured child might have seen and avoided the danger — that is, whether he was guilty of contributory negligence — is peculiarly within the province of the jury to determine."
Error is assigned upon the following excerpt from the charge:
"You may or may not find that he was mentally affected by the accident. He may recover for this loss in the past and in the present; and if you find that his mental faculties will be impaired permanently and that it will reduce his earning ability, you may allow such an amount as you find by the present worth of his earnings he will lose by reason of such impairment after he reaches the age of twenty-one years."
Dr. Tibbals testified:
"On the history that I had and on my examination and from my knowledge and experience, I have an opinion this accident, this hurt, had affected his mind; that as a result of the accident the mental development of this boy had been interfered with.
"Q. Did you form an opinion as to whether that interference or retardment or stopping of it, whichever — did you make up your mind which it is? Retardment or stopping? Is it a mere slowing down or is it a complete stopping?
"A. Well, it is — up to date it is stopping, because he is just where he was at the time the accident occurred in school, and in his general mental development. I think it is permanent."
There was other testimony to the same effect. Counsel in their brief say: *Page 312
"There was not a particle of evidence that the plaintiff did suffer any pecuniary loss by reason of any mental impairment. There was not even an opinion of an expert witness to this effect. There is no presumption that the mental impairment testified to, even if it were caused by the accident, did occasion any pecuniary loss. If there were any such damages, it was susceptible of proof in exactly the same manner that damages resulting from physical injury is susceptible of proof. The jury cannot speculate as to any damages in the absence of such proof."
This claim, while applicable to an adult plaintiff, has, in my opinion, no application to the probable loss of earnings of a boy less than 16 years of age at the time of the trial. He had not arrived at an age where he had become an earner of wages. No comparison could be made of his probable earnings after he should reach the age of 21 with those of a young man whose mental faculties had not been impaired. The plaintiff was entitled to recover, if at all, for any loss of earnings after he reached the age of 21 years which he might sustain due to his injury. If the injury had caused a permanent mental impairment, a loss might be fairly inferred therefrom and recovery had therefor. Braasch v. Michigan Stove Co., 153 Mich. 652,657 (20 L.R.A. [N. S.] 500). The amount of such damages could not be estimated with certainty, "but this does not, as we have repeatedly held, deprive the injured person of all damages." Love v. Railroad Co., 170 Mich. 1, 7. The plaintiff was not to blame for being unable to establish by proof the amount of such loss. He was entitled, however, to place the facts before the jury and to take their judgment thereon. Hart v. Village of New Haven, 130 Mich. 181. The jury had all been boys, and were then men. The average juror knows the ability of a man mentally sound to earn wages, and would be just as competent to estimate the loss of earnings due to mental impairment as would any witness who *Page 313 might be called upon to express an opinion thereon.Black v. Railroad Co., 146 Mich. 568. The absence of such proof was no bar to the allowance of such sum as the jury might find to be fair and reasonable.
The jury, after some deliberation, returned a verdict in favor of the plaintiff and against the defendants bottling works and Porath. The court had instructed them that to find against the bottling works they must find the defendant Fowler personally to have been guilty of negligence. They were again very emphatically instructed as to their duty in this respect, and retired and again returned with a verdict against all three defendants. It is urged that the first verdict was a finding that Fowler was not negligent, and, if not, a verdict against the bottling works was not justified. The verdict first rendered was inconsistent. While the charge was explicit as to the liability of the three defendants, it apparently was not understood by the jury. I think the further instruction was justified, and that a new trial should not be granted for this reason.
On a motion for a new trial the court required the plaintiff to remit $3,000 of the $8,000 verdict as a condition of the denial thereof. This was done. I cannot say that $5,000 is so excessive an allowance for the injuries plaintiff received as to justify us in reversing the judgment for that reason.
The judgment is affirmed.
BIRD, SNOW, STEERE, and McDONALD, JJ., concurred with SHARPE, C.J.