173 Wis. 603 | Wis. | 1921
The following opinion was filed February 8, 1921:
The appellant insists that the civil and circuit courts erred in holding that the issue of Londs Goldberg’s contributory negligence is properly for determination by the jury, and urges in this court that the evidence shows as matter, of law that he was guilty of contributory negligence.
At the time of the accident this boy was nine and one-half years of age. Whether or not the boy exercised due care under all the facts and circumstances disclosed by the evidence
The precedents are in general to the effect that in determining whether or not a child exerised the care that one of its age, capacity, knowledge, and experience exercises under similar circumstances, due consideration must be given to the power and influence of childish instincts; for while a child may have the knowledge of an adult respecting dangerous acts, he may not have the prudence, discretion, or thoughtfulness to avoid the hazards and risks to which the)'- expose him. If the facts disclosed by the evidence clearly establish what care was exercised by the child and that he possessed the capacity, knowledge, discretion, and experience of the generality of children of his age, it then became a proper question for the court to inquire as a matter of law whether or not he was guilty of contributory negligence on the occasion in question. The evidence clearly shows that the plaintiff Louis Goldberg was an intelligent boy who possessed the capacity and discretion of boys of his age generally and that he had the knowledge and experience in the affairs of life that boys of his age commonly possess. The evidence shows affirmatively that he had attended the public schools from about his fourth year and that he was familiar with the dangers and hazards in streets and of colliding with automobiles while coasting on the streets. On this subject he testified that he knew it was dangerous because automobiles drive- past; that his folks told him many times to be careful in going across streets. On the point of what he did before and while coasting he says that when he started to
By the Court, — The judgments appealed from are reversed, and the causes remanded to the circuit court with direction to award judgment in each case dismissing plaintiff’s complaint.
A motion for a rehearing was denied, with $25 costs, on April 5, 1921.