129 Wis. 622 | Wis. | 1906
The sole assignment of error is upon refusal to order nonsuit or to direct verdict for defendant, which rests upon the contentions that no negligence was proved against it, that it is liable only for gross negligence, and that contributory negligence was established against plaintiff’s mother. Of course, as appellant argues, mere carelessness is not ground of liability, unless a breach of some duty to others
At this point counsel further insists that, whatever may
Appellant’s principal reliance is upon Friedman v. Snare & T. Co. 71 N. J. Law, 605, 61 AtL. 401, and Pueschell v. Kansas City W. & I. Works, 79 Mo. App. 459. These cases, while in ultimate decision perhaps distinguishable from Busse v. Rogers, supra, rest largely on reasoning quite in conflict with our views as there expressed, and we should, 'hesitate to accord them full force as authority. They are, however, so clearly distinguished from the case at bar as to be of little significance. In both the injury was caused by the material itself, which had been piled in the street, and was immediately induced by acts of the injured person in tampering with or climbing upon the piled-up beams. The trespass there declared to exist was trespass upon the personal property, and the holding was that one lawfully placing material in the street owed no duty to make such materials ■safe as playthings. In the present case the material in the street had nothing to do with causing the injury. Its presence is merely invoked to convict plaintiff of trespass in being at the place where he was injured by acts of defendant in operating its pile driver claimed to be negligent. We can discover no reason to avert the conclusion that defendant owed towards persons lawfully in the street the duty of due ■care in operating its pile driver, and that plaintiffs presence was not unlawful under the circumstances disclosed by the ■evidence most favorable to him.
Appellant’s contention that there was no evidence of any negligence in operating the pile driver cannot be sustained. Three witnesses testified that at the penultimate stroke of the lammer the pile broke transversely in two or three places,
Upon the issue of contributory negligence of plaintiff’s mother the evidence tends to show that she lived in a house something more than a block and a half from the place of injury, and around two street corners; that she was a woman who earned her own living as a nurse, and had the care of the housekeeping for her family, consisting of her mother, an adult brother, herself, and three children; that she had never known the plaintiff to go where the pile driver was at work; that on the day in question her brother was sick in bed, and she was engaged with her Saturday house-cleaning; that she gave plaintiff his lunch in the kitchen, which had a door leading to the back yard that was not locked; that after giving him his lunch she turned to her work in another room and was out of sight only fifteen or twenty minutes when she-learned of his injury. To reach this place of danger he must have gone from the kitchen into the back yard, thence into the street in front, and around by the streets to the place of injury. We think that the ordinary mother of a family, under these circumstances, would be very much surprised to learn that she had been guilty of negligence in the care of an approximately three-year-old child. Certainly the fact of .such negligence is not clear enough to be declared as mat
By the Gourt. — Judgment affirmed.