An action was brought under the statute, Section 4962, Revised General Statutes of 1920, by the father to recover damages for mental pain and suffering by the father and mother because of the wrongful death of their fifteen months' old minor child caused by impact with defendant's street car, the child being unattended and walked too near the street car track in front of plaintiff's home just as a car was passing. Verdict and judgment for $5,000.00 were rendered for the plaintiff and defendant took writ of error.
This is not an action by an infant for personal injuries where contributory negligence of the parents will not be *Page 1033 imputed to the child. Jacksonville Electric Co. v. Adams,50 Fla. 429, 39 South. Rep. 183.
It is not clear that, notwithstanding the verdict and judgment, liability of the defendant is not shown, but it is clear that contributory negligence of the parents appears as averred, and the amount of the damages awarded indicates that the damages were not diminished in proportion to the default attributable to the parents as is required by the statute, Section 4962, 4964, 4965, Revised General Statutes of 1920.
If the plaintiff remits $2,500.00, the judgment will stand for the remainder, $2,500.00; otherwise, the judgment will stand reversed for a new trial.
WHITFIELD, P. J., AND TERRELL AND BUFORD, J. J., concur.
BROWN, C. J., AND ELLIS, J., concur in the opinion.