40 N.W.2d 374 | Wis. | 1949
Action to recover damages for the death of Janice Culton, a child of plaintiffs, by reason of the negligence of the defendant, commenced January 6, 1949, by Owen M. Culton and Laura Culton, plaintiffs, against Cornelius Van Beek and his insurance carrier, the Badger State Casualty Company, Limited, Mutual, defendants. The case was tried to the court and a jury, and a special verdict rendered. Defendants appeal from the judgment entered June 3, 1949, in favor of the plaintiffs.
On June 14, 1948, the defendant Cornelius Van Beek was the owner of a farm in the town of Bashaw, in Washburn county, Wisconsin. The exact locations of the buildings and other improvements upon the farm are not clearly set forth in the record. However, the following does appear. A town road runs in front of the premises. The house is about two hundred feet back from the road and the barn is about four hundred feet back from the road. A driveway runs from the road between the house and the barn. This driveway is about twenty feet from the house. There is a well somewhere between the house and the barn, and a cooling tank is located near the well. The house is about twenty-four by thirty-six and there is a screened porch on the rear of the house extending about two thirds of the way across.
On said date the Van Beek family consisted of Mr. Van Beek, his wife, and two children, one about four years of *219 age and a little boy about sixteen months of age. Late in the month of May, 1948, the plaintiff Laura Culton and her two children, Shirley, nearly six years of age, and Janice, eighteen months of age, came to visit at the Van Beek farm. They were still on the farm on June 14, 1948. Mrs. Culton and Mrs. Van Beek were sisters.
Mr. Van Beek was the owner of a jeep station wagon which was used, among other purposes, for transporting the milk from the barn to the cooling tank near the well. The children, including Janice Culton, were accustomed to play in the yard and to ride with Mr. Van Beek when he hauled the milk from the barn to the well.
On the morning of June 14, 1948, Mr. Van Beek had finished milking and had placed the milk in the cooling tank. He then drove the station wagon up to the rear of the house and parked it ten to fifteen feet from the porch. The family had breakfast. After breakfast the children, with the exception of Janice Culton, went into the yard to play. Later Mrs. Van Beek went out to the well. Mr. Van Beek testified that after the children had been outside playing for from fifteen to thirty minutes he left the kitchen with the intention of driving to Shell Lake. In leaving the house he went out the kitchen door, across the porch, and through a screen door leading from the porch. This screen door was sometimes left open, but none of the witnesses could recall whether or not the screen door was open at the time Mr. Van Beek left the house. When he stepped out of the kitchen Mrs. Culton was standing near the kitchen cupboard, getting ready to wash dishes. Janice Culton was standing in the center of the kitchen floor. Mr. Van Beek walked to the left of the station wagon and got into it through the left door. At that time he observed his oldest child playing with Shirley Hatton, ten years of age, near the barn. Mrs. Van Beek was near the well and the little boy of the Van Beeks, age sixteen months, was near the well and approximately forty feet *220 from the jeep. Van Beek turned on the switch and stepped on the starter. The engine did not start immediately. Mr. Van Beek's testimony as to the starting of the motor was as follows:
"Q. And did you — did the car start immediately? A. Well, it stalled; it started, but it stalled again.
"Q. Then did you start it again? A. No, I didn't right then. My wife came up and started to talk to me at that time."
At another point in his testimony he said the motor "just coughed once or twice." After completing his conversation with Mrs. Van Beek he looked in his rear-vision mirror, started the motor, and backed the station wagon. To reach the highway it was necessary to back and turn the station wagon about thirty feet. He had proceeded but a few feet when one wheel of the station wagon passed over the body of Janice Culton, killing her instantly. At one time Mr. Van Beek testified that about thirty seconds had elapsed from the time he left the porch until he started to back up his car. At another time he testified that he thought it was about thirty seconds after he got into the jeep before he started backing up. The rear-view mirror would not disclose a child the size of Janice standing behind the station wagon. Mrs. Culton testified that it was a few minutes after Mr. Van Beek left the kitchen before her attention was called to the accident.
The jury, by its special verdict, found Van Beek causally negligent as to lookout.
The law in this type of case is well established. In Heikkila v. Standard Oil Co.
"The driver was bound to exercise ordinary care not to injure a child of this age, and if he had any reason to anticipate that a child might be near his truck, it would be his duty to see that the way was clear before starting his truck."
In Patterson v. Edgerton Sand Gravel Co.
"`If Wescott knew or had good reason to believe that someone might get back of that truck after he took his last observation and before starting up, or if under all the circumstances he should have known or did know that someone might get back there then it was his duty to keep a close lookout, even to the point of its being necessary for him to get out of his truck, walk to the rear and find out.'"
In Hartzheim v. Smith,
"`The backing of any vehicle entails more or less limitation of the view of the driver of the area to be traversed, and thus requires a vigilant lookout on the driver's part to avoid causing injury to persons who are known to be or likely to be in the vicinity of the car that is being backed up.
"`Now the defendant, Lois Smith, was chargeable with knowledge of the traits of a child of Barbara Jane Hartzheim's age, which would require increased vigilance as to lookout on her part if she knew, or in the exercise of ordinary care ought to have known, that Barbara Jane Hartzheim either was or was likely to be to the rear of the car.'"
In this case the jury could well find from the evidence that Janice Culton was a very active child for her age; that she could quickly go from the kitchen to the rear of the station wagon; that she was accustomed to play in the yard with the other children and that in going from the kitchen to where the other children were she might well pass in the rear of the station wagon; that defendant had knowledge of these facts and of the traits of children of her age; that Van Beek consumed more than thirty seconds in walking to the vehicle, making his observation as to the position of the children in the yard, getting into the driver's seat, attempting to start the motor, visiting with his wife who *222 walked from the well to the left side of the vehicle, starting the motor, and looking into the rear-view mirror before backing up. Sufficient time did elapse to permit the child to walk from the kitchen to her position behind the car. They could consider the fact that he looked into the rear-view mirror before starting as evidence that he had some reason to believe one or more of the children had time to move from a former position. Although near the porch he did not see the child cross and step from the porch. He did not ask his wife to make an observation, but relied upon his view in the rear-view mirror, which would not disclose a child the size of Janice standing behind the station wagon.
The case is not without difficulty, but we conclude that a jury issue was presented, and that there is sufficient evidence to support their finding.
By the Court. — Judgment affirmed.
FRITZ, J., dissents.
