Fettig v. Jacobs

Edward Jacobs, a boy nine years of age, was stealing a vide on a low truck belonging to the plaintiff in error, which was being driven by an employe along Eace street, this city. Upon discovering the boy, the driver struck him with his whip. The boy fell under a wheel in attempting to get off the moving wagon, and was permanently injured in one foot. The jury assessed his damages at $300.

The testimony in this ease tended to show that the driver on the wagon belonging to the plaintiff in error wilfully struck the defendant in error in the face, and although the latter was a trespasser, the court did not err in overruling the motion to arrest the case from the jury.

There was no error in giving the special instructions at the request of defendant in error, and while that part of the general charge pertaining to the conduct of the boy after he was struck is not as clear as it should be, yet it was -not prejudicial. •

*778What the court intended to say and what the jury evidently-understood was if the boy’s conduct, which was apparently careless and awkward, was the result of fear occasioned by the driver striking him, he would be entitled to recover.

Judgment affirmed.