
    (70 South. 812)
    No. 20218.
    FULCO et ux. v. SHREVEPORT TRACTION CO.
    (Jan. 10, 1916.
    Rehearing Denied Feb. 7, 1916.)
    
      (Syllabus by the Court.)
    
    Street Railroads <&wkey;95 — Negligence—Injury to Child.
    A motorman, operating an electric car, and seeing a child under four years of age running ahead of the car and in dangerous proximity to the track, is guilty of gross negligence • if he fails to maintain such slow speed and keep his car at such distance from the child as to be able to avoid a collision in case the child attempts to cross the track.
    [Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 179, 180, 202; Dec. Dig. &wkey;»95.]
    Appeal from First Judicial District Court, Parish of Caddo; T. F. Bell, Judge.
    Action by Carmelo Fulco and wife against the Shreveport Traction Company. From judgment for plaintiffs, defendant appeals.
    Affirmed.
    Wise, Randolph & Rendall, of Shreveport (A. B. Freyer, of Shreveport, of counsel), for appellant. Murff & Thurber, of Shreveport, for appellees.
   O’NIELL, J.

This is a suit for $10,000 damages for the killing of the plaintiffs’ child by a street car of the defendant company. The jury rendered a verdict in favor of the plaintiffs for $3,700. The defendant has appealed, and the plaintiffs ask that the amount of the judgment be increased to $10,000, or at least to $5,000.

The victim of the accident was a boy only three years and ten months old, who had wandered out alone from his father’s store into the street and was run over by the electric car.

Several persons who witnessed the accident testified that the car was going very fast, and that the motorman did not reduce his speed or apply the brake until the child was struck. They say that the motorman’s attention was directed toward a crowd of people and vehicles congregated at a railroad station which the street car was approaching, and that he did not see the child running ahead of the car on the other side of the track. Several of the witnesses testified that one of them called to the motorman and tried to attract his attention to the child near the track, but that tbe motorman did not look in tbe direction of the child until it was too late to avoid tbe accident.

Tbe motorman testified that be saw tbe child when it ran into the street to a point about 2 feet from tbe track. 1-Ie said be was then about 80 feet away, was traveling at tbe rate of only about 6 miles an hour, and that tbe child bad ample time to cross tbe track. Tbe motorman admitted that be realized tbe dangerous position of the child and said that be immediately threw off: tbe motive power, applied tbe brake, reduced bis speed to about 4 miles an hour, and sounded bis gong until be attracted tbe child’s attention. The child bad then run along tbe track, in tbe direction in which tbe car was traveling, a distance of 40 or 50 feet to a point about 3 feet from tbe track. Tbe motorman then concluded that tbe child would go onto tbe sidewalk, and be says be “began to feed tbe car up, put it up one or two points,” and allowed it to proceed slowly for a distance of about 80 feet further while tbe child ran ahead of tbe car for a distance of about 40 feet further. Tbe motorman says that tbe child was looking across tbe track as be ran, as if be wanted to cross in front of tbe car but was afraid to attempt it. When tbe car bad approached to within 10 feet from tbe child — possibly within 6 feet, as the motorman admits — -the child was within 7 feet, possibly only 3 feet, from tbe track, and suddenly ran so close that tbe corner or cone post of the car struck him. Tbe conductor immediately applied tbe emergency brake, but tbe car continued for a distance of about 50 feet, dragging the child and mangling him under tbe wheels. He was picked up about 10 feet behind tbe car when it stopped. He died in less than an hour. Tbe accident happened in daylight, and there was nothing to obstruct tbe motorman’s vie^v of tbe child from tbe time he ran into tbe street until be was struck by tbe car. During that time, according to tbe motorman’s statement, tbe car traveled about 160 feet, while tbe child covered a distance of about SO feet, running ahead of tbe car and in dangerous proximity to tbe track.

Tbe motorman’s testimony is very uncertain and unsatisfactory as to distances, and we are inclined to believe, from all of tbe testimony in tbe case, that bis ear was traveling faster than 4 miles an hour, and that tbe child did not run as far ahead of tbe car as tbe motorman estimates. However, if tbe car was traveling as slowly as tbe motorman says, it covered tbe distance of about 160 feet, from tbe place where be first reduced his speed to tbe place where be struck tbe child, in about 27 seconds.

Accepting tbe motorman’s account of tbe accident as correct, we conclude that be was guilty of gross negligence in running bis car so close to tbe child, who was too young to exercise any discretion, that tbe car could not be stopped in time to avoid killing tbe child when be attempted, what tbe motorman saw be was likely to attempt, to run across tbe track in front of tbe car. Under tbe circumstances related by tbe motorman, it was bis duty to maintain such a slow, speed, and keep bis car at such a distance from tbe child, as to be sure be could avoid a collision if tbe child ran towards tbe track.

As tbe motorman bad the last clear chance to. avoid tbe accident, there is no merit in tbe defendant’s plea that tbe plaintiffs were guilty of contributory negligence in permitting their child to run out upon tbe street alone. As a matter of fact, tbe father bad lost sight of tbe child in bis store only a few minutes before tbe accident; and, if there was any negligence on his part, it was indeed slight.

Tbe assessment of damages arising ex delicto is a matter so largely within tbe province and discretion of tbe jury that we have concluded not to increase tbe award in this case.

Tbe judgment appealed from is affirmed.  