“An infant, 14 years of age or over, is presumed to possess sufficient mental capacity to comprehend and avoid danger; and, if he relies on his want of such capacity, the burden of proving is on him, but, if under the age of 14, he is presumed not to possess such capacity”
How later courts described this case
- “An infant, 14 years of age or over, is presumed to possess sufficient mental capacity to comprehend and avoid danger; and, if he relies on his want of such capacity, the burden of proving is on him, but, if under the age of 14, he is presumed not to possess such capacity”
- "Where, in the trial of an action at law before a jury, the evidence is conflicting, it is the province of the jury to resolve the conflict, and its verdict thereon will not be disturbed unless believed to be plainly wrong."
Written by the judges who cited it.
The opinion
Kenna, Judge,
dissenting:
To my mind it is plain that the amount of the verdict in this matter does not indicate prejudice, bias or corruption on the part of the jury in favor of the plaintiff and consequently the judgment below should not be reversed for that reason.
When injured the plaintiff was eleven years old and was being schooled as an acrobatic dancer. She suffered a severe laceration on her left leg and a compound fracture of both the bones in her right leg so that after being in the operating room for approximately one hour in the Bluefield Sanitarium she was kept there for nineteen days. A compound fracture is where particles of bone have cut the flesh through to the surface. It does not appear in this instance that the bone remained protruding after the cut. The wounds in both legs were closed with sutures, the bones in her right leg manipulated into proper position and that leg encased in a heavy cast from the toes to the middle of the thigh. Plaintiff wore that cast for sixty days when it was replaced by one that was lighter. She remained in bed after her injury for six weeks and was still on crutches at the time of trial which
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followed -the injury by a little over three months. The opinion of the doctors is that within a year she will be back to normal. None would state positively that there will be no permanent functional disturbance.
It is hardly worthwhile to cite authorities on the question of the elements going to make up compensatory damages. The amount that this plaintiff sought to recover was §25,000.00. The jury awarded a verdict of §10,000.00 It may be a very unfortunate circumstance that the defendant believed he had insurance coverage until after the trial and that his insurer then went through bankruptcy. That fact of course is not to be considered in determining the verdict’s excessiveness.
I am authorized to say that Judge Lovins joins in this dissent.