Degan v. Jewell. of title. Absent a proven common source of title, as we are forced to find, the present judgment is wrong. The judgment is therefore reversed, and the cause remanded to be proceeded with in accordance with the views herein expressed. All concur. OWEN W. DEGAN and MARY GERTRUDE DEGAN v. WILLIAM A. JEWELL, Appellant. Division One, March 14, 1922. Where 1. NEGLIGENCE: Death of Child: Humanitarian Doctrine. plaintiffs' three-year-old child was run over and killed by defendant truck, while he was crossing a public street, and there was no other vehicle on the street and nothing to prevent the driver of the truck from seeing the child the street, and the driver admitted that he saw him at a point in the street which the evidence showed was forty feet from the place where he was struck, and the truck wa goi.. frm ten to fifteen miles an hour and was stopped in eight feet when the brakes were applied, the evidence made a case for submission to the jury on the humanitarian doctrine. 2. 3. : : Measure of Damages: Instruction. The measure of damages in a suit by parents for the death of a minor child, caused by negligence, is the value of the child's services during his minority, and the burial and other expenses incurred by reason of his death or sickness, less the expense of his support and maintenance during his minority. An instruction in such a suit was, therefore, erroneous, which told the jury that in estimating the damages they could only consider the amount which the deceased would have probably earned and accumulated by his own efforts and which would have gone to the benefit of his parents, taking into consideration all of his surroundings and the probabilities of his turning it over to his parents and working for their benefit, or not doing so, until he should have arrived at the age of twentyone years. Harmless. Nor can said instruction be held to be harmless on the theory that it relates solely to the measure of damages and the jury found for defendant on plain tiff's cause of action. Degan v. Jewell. On the contrary, the instruction in legal effect told the jury to find for defendant, unless they found that the child would probably have earned money by his own efforts and voluntarily turned the same over to his parents. Appeal from Buchanan Circuit Court.-Hon. L. A. Vories, Judge. AFFIRMED. Randolph & Randolph for appellant. (1) It was error on the part of the lower court to grant plaintiff a new trial on the ground assigned by the court; that is, that the court erred in giving on behalf of the defendant Instruction 14. That is the instruction as to the measure of damages in the event they should find for the plaintiff. Where the verdict is for the defendant, an erroneous instruction of the measure of damages given for the defendant is harmless error and is not ground for a new trial. Ewalt v. Garnett, 180 Mo. App. 620; Ogle v. Sidwell, 167 Mo. App. 299; Feary v. St. Ry. Co., 162 Mo. 98; Mill Co. v. Caven, 76 Mo. App. 462; Mangelsdorf Co. v. Harnden Co., 132 Mo. App. 512. (2) At the close of the testimony on behalf of the plaintiff and at the close of all of the testimony, the defendant asked an instruction in the nature of a demurrer to the evidence, which instruction should have been given by the court for the reason that there was positively no evidence of any negligence on the part of the driver of defendant's automobile under the "last chance doctrine" to justify the submission of the case to the jury. Shanks V. Traction Co., 101 Mo. App. 702; Ries v. Transit Co., 179 Mo. 1. (3) If the court should differ with us on this point, then it having been purely a question for the jury under the instructions as to whether or not the defendant exercised the proper degree of care after seeing the boy, the court was in error in granting a new trial purely upon the ground that the instruction as to the measure of damages, given upon behalf of the defend 293 Mo.-6 Degan v. Jewell. ant, was erroneous, because the jury never got to the question of considering the amount of damages, but simply considered the question of liability, and there was no error in any instruction given to the jury with reference to the question of liability. (4) There was, however, no error in the giving of Instruction 14, as every element in that instruction enters into the estimation of damages in a case of this kind. Andrews v. Ry. Co., 86 Iowa, 677; Ry. Co. v. Henderson, 148 S. W. 822; Wabash R. Co. v. Smith, 162 Ill. 583; Ry. Co. v. Gilmore, 53 S. W 61; De Amado v. Friedman, 11 Ariz, 56. Mytton & Parkinson for respondent. (1) Under the last-clear-chance doctrine, upon which alone the case was submitted to the jury, the contributory negligence of the parents in permitting the child to be upon the street was no bar to a recovery or defense to the action. Czezewzke v. Ry. Co., 121 Mo. 201; Cornovski v. Transit Co.; 207 Mo. 263; Lynch v. St. Ry. Co., 112 Mo. 420; O'Flaherty v. Ry. Co., 45 Mo. 70. (2) The verdict of the jury was against the evidence and the overwhelming weight of the evidence. (3) For the negligent killing of a minor child the parents are entitled to recover the pecuniary value to the parents of the child's services during his minority, less the expense to the parents for his support and maintenance during that time, and it is proper to take into consideration the value of the services which a child will render his parents apart from wages he may earn in the services of strangers and turn over to them. Kelley v. Higginsville, 185 Mo. App. 64; Leahy v. Davis, 121 Mo. 227; Hickman v. Ry. 22 Mo. App. 344; Marshall v. Mining Co., 119 Mo. 270. (4) The law presumes the life of a minor child to be of value to his parents because they are entitled to his services and are responsible for his support during minority. They are necessarily injured by a wrongful act resulting in the death of such minor child, which thereby deprives them of those services and casts upon them the burden Degan v. Jewell. of legal liability for that support while deprived of the value of such services, enhanced by the additional expense of providing medicine, medical attention and nursing during illness and for funeral charges when he dies, to be measured by the experience and judgment of the jury enlightened only by knowledge of the age, sex and condition in life of the deceased. Parsons v. Ry. Co., 94 Mo. 296. (5) The court, having given for the plaintiffs their Instruction No. 7, erred in giving, in conflict therewith and derogatory thereof, defendant's Instruction No. 14. JAMES T. BLAIR, J.-This is an appeal from an order granting a new trial after verdict for defendant in an action brought by respondents for damages for the death of their three year old son who was killed by appellant's truck. Tenth Street, in St. Joseph, runs north and south. Corby runs east and west. At their intersection each is thirty feet between the curbs, and about fifty feet between the property lines. The truck was used for delivery purposes, and was being driven by an employee of appellant. It had stopped some distance north of the street intersection on the east side of Tenth Street, and then started south and crossed to the west side of Tenth, and continued on that side southward at the rate of ten to fifteen miles per hour. The child, just before it was struck, was standing on the sidewalk at the northeast corner of the street intersection. The testimony of the one eye-witness, other than the driver of the truck, tends to show that she had seen the child at the place stated; that she walked eastward a short distance and heard the rattling of boxes in the street; that she turned and looked just in time to see the child fall and the wheels of the truck pass over him; that when he fell the child was going southwestwardly, and had reached a point on Tenth about three feet west of the street car track, in the middle of Tenth, and about three feet south of the south property line of Corby Street. The evidence tends Degan v. Jewell. to show that the sidewalks were ten feet wide. The distance the child traveled across the intersection to the point where he fell and was struck, according to the witness referred to, was about forty-seven feet, as a calculation from the distances given will show. It was necessary for him to pass over the part of the street between the northeast corner of the intersection and the point where the truck ran over him. There was no other vehicle on the street, and nothing to prevent the driver from seeing the child in the street. While he contradicts the other witness as to the point of collision, he does say he saw the boy in the middle of the street car track and running southwestwardly when the truck was near the northwest corner of the street intersection. This point is over forty feet north of the place at which the first witness says the truck struck the child. The truck must have been north of Corby Street when the child left the curb at the northeast corner of the intersection. At the championship speed of nine and three-fifths seconds for one hundred yards more than one and one-half seconds would be required to cover forty-seven feet. At the best rate of the average man about two and one-third seconds would be required. This three-year-old child could hardly have made it in less than twice this time. Four seconds before the boy was hit the truck was about sixteen feet north of the north curb line of Corby Street if it was running ten miles per hour, and about forty-five feet north of the same line if it was running fifteen miles per hour. The driver testified it was running ten to fifteen miles per hour. During this time and space the boy was in the street going toward the place where he was about to be run over. The truck was stopped in eight feet when the brakes were applied. There is countervailing evidence, but it is to be rejected in considering the contention that the case should not have been submitted to the jury. The ground assigned by the trial court for granting a new trial was that an instruction given for appellant was erroneous. Appellant contends (1) the instruction |