
    The John Shillito Co. v. Shanley, Admr.
    
      Negligence — Child killed by backing automobile truck — Charge to jury — Refusal of special request not error, when — Duty to ascertain whether children at rear of truck before backing — Measure of damages — Failure to exclude possible earnings of minor, not error, when — Charge to jury upon contributory negligence, not prejudicial, when.
    
    1. In action for death of child when truck backed over it, refusal of instruction that fact that children had been on sidewalk before truck started to back did not require employees to walk to rear to ascertain whether children were there held not error, in absence of showing that children were known to have been on sidewalk before truck started back, especially where identical charge was given, .with qualification that jury believed that ordinarily prudent person would have done so under similar circumstances.
    2. In action for death of minor for benefit of heirs and next of kin under Section 10772, General Code, failure of instruction on damages to exclude any earnings minor might have made before arriving at 21 held not erroneous, notwithstanding action was not for exclusive benefit of parents.
    3. In action for death of minor,, that court charged on contributory negligence held not prejudicial to defendant.
    (Decided March 8, 1926.)
    Error: Court of Appeals for Hamilton county.
    
      Messrs. Cohen, Mach S Hurtig, for plaintiff in error.
    
      Mr. John A. Scanlon, for defendant in error.
   Buchwalter, P. J.

The action below was for damages for wrongful death of a minor, and was brought by the administrator of the decedent for the benefit of the heirs and next of kin.

The cause of action stated against the defendant is that on or about December 11, 1923, one of the trucks owned by the defendant, and operated by its agents and servants, engaged in and about the business of the defendant, stopped in front of a certain house on Richmond street. The petition further recites:

“After said truck had stopped at the place mentioned, the decedent [James Shanley] and two companions approached said truck and engaged in conversation with the agents and servants of defendant. Plaintiff states that said James Shanley stepped out into the street to observe the contents of defendant’s truck, and that defendant’s agents and servants saw and knew said child was in the street immediately in the rear of said truck, or by the exercise of ordinary care could or should have seen that said child was in the rear of said truck. The servants and agents of the defendant were guilty of negligence, in this, that notwithstanding the fact that they saw, or by the exercise of ordinary care could and should have seen, decedent in the rear of said truck, they did negligently back said truck, without signal or warning to the decedent, in violation of the statutes of Ohio and the ordinances of the city of Cincinnati, then in full force and effect.”

The answer of the defendant denies all the allegations above quoted.

The jury returned a verdict for the plaintiff, on which judgment was entered. Error is now prosecuted to reverse that judgment.

The errors relied upon are:

(1) The refusal of the court to direct a verdict for the defendant.

(2) Error in the refusal to give written instruction No. 1, offered by the defendant.

(3) That the verdict is not sustained by sufficient evidence.

(4) Error in the instruction as to the measure of damage.

(5) Error in instructing on contributory negligence.

We have examined the record, and do not find that the. court was in error in overruling the motions for a directed verdict, one made at the close of plaintiff’s evidence, and one at the close of all the evidence. Nor do we find that the verdict is not sustained by sufficient evidence.

Charge No. 1, which the court refused to give, is as follows: “The jury are instructed that the fact that children were on the sidewalk, or had been on the sidewalk, before the employees of defendant’s truck started to back the same, did not impose upon said employees the duty of getting off the truck and walking to the rear thereof to ascertain whether or not any one of such children was in the rear thereof.”

We do not consider that the court was in error in refusing to give this charge to the jury. There is nothing to show by this charge that the children were known to have been on the sidewalk before the truck started to back. Moreover, it was not an instruction on the law as applied to the facts. The court, however, by instruction No. 2, covered any matter contained in No. 1, in that it was identical, except that there was added to it the words “unless the jury believe from the evidence that an ordinarily prudent person under similar circumstances would have done so.”

The verdict is for a considerable amount. We are not prepared to say that it was the result of passion and prejudice.

It is contended that, as the court did not exclude any earnings that a minor might have before reaching the age of 21 years, the instruction on the measure of damages was erroneous in that the earnings would belong to the parents alone, and not to his next of kin. Under the provisions of the law relating to actions for injury for wrongful death, Section 10772, General Code, “Such actions shall be for the exclusive benefit of the wife, or husband, and children, or if there be neither of them, then of the parents and next of kin of the person whose death was so caused: It must be brought in the name of the personal representative of the deceased person and the jury may give such damages as it may think proportioned to the pecuniary injury resulting from such death, to the persons, respectively, for whose benefit the action was brought. * * * The amount received by such personal representative, whether by settlement, or otherwise, shall be apportioned among the beneficiaries, unless adjusted between themselves, by the court making the appointment, in such manner as shall be fair and equitable, having reference to the age and condition of such beneficiaries and the laws of descent and distribution of personal estates left by persons dying in this state.”

This action was brought for the benefit of the father, mother, sisters, and brothers of the deceased. The jury does not divide the fund, neither does the trial court. The defendant is not concerned as to how distribution is made. Whatever may be the pecuniary injury sustained by the various persons for whose benefit the suit is brought is included in one lump sum in the verdict, and, unless those parties adjust among themselves the portion each is to take, the probate court is to divide it in such manner as shall be fair and equitable, having reference to the conditions named in the General Code.

The question as to whether or not the services of a child, prior to arriving at the age of 21 years, are to be included in a general verdict was discussed and decided in the case of Toledo Railways & Light Co. v. Wettstein, Adm’r., 14 C. C., (N. S.), 441, 23 C. D., 15 (affirmed without opinion 79 Ohio St., 439, 87 N. E., 1142).

Error is also complained of in that the court charged on the question of contributory negligence. We are unable to see that this was in any manner prejudicial to the plaintiff in error.

Finding no error prejudicial to the plaintiff in error, the judgment of the court of common pleas will be affirmed.

Judgment affirmed.

Hamilton and Cushing, JJ., concur.  