170 Wis. 454 | Wis. | 1920
The trial court directed a verdict in favor of the defendant solely upon the ground that the evidence did not disclose any violation of a duty which the defendant owed to the plaintiff and that actionable negligence on the part of the defendant had not been shown. Appellant contends that the railroad company failed in the performance of its duty in its long acquiescence in the custom obtaining on the part of both boys and men of frequenting'the rightt of way and jumping on moving freight trains and cars at the Wilcox-street crossing without any protest against such custom on the part of the company and without any effort on its part to stop or break up such custom and practice. We shall not consider the question of the negligence of the company, for the reason that, whether or not the company was guilty of negligence, plaintiff must be held guilty of contributory negligence as a matter of law.
We are thoroughly familiar with the principle that children of tender age are not held to that degree of care ordinarily exercised by adults, and that, frequently, conduct which would convict an adult of negligence as a matter of law raises but a jury question as to a child of tender years. However, this court has held children much younger than plaintiff in this case guilty of contributory negligence upon conduct much less rash than his. It may be that this court has been too rigorous in the standard of care required
In the Ryan Case a boy a little less than nine years of age, while 'walking in the street, was struck by a street car, unobserved by him, due entirely to his inattention. He was held guilty of contributory negligence as a matter of law. In the Wills Case a country boy who lacked two months of being fourteen years of age, who was but infrequently in the city, who was walking in a peculiarly confused place in the road, just emerging from the shadows of a double and complicated railroad bridge onto the street, where there was no sidewalk, and where the ordinary paved way was much used by foot passengers; and while his attention was unquestionably attracted by the novel and interesting sight of an ore train making its way over the trestle out to' the ore docks, unconsciously gravitated so near to the streetcar track that he was struck by a passing car, was held guilty of contributory negligence as a matter .of law. In the Ballard Case the plaintiff, a girl eleven years of age, was injured while riding in and operating an automatic elevator in an apartment building. Because she knew and appreciated that children of her age had been prohibited by the proprietor of the building from operating the elevator, and knew that it was dangerous for her to do so, she was held guilty of contributory negligence as a matter of law. .
In the Ryan and Wills Cases the negligence of the children consisted simply in a lack of attention-to where they were going, and was of a negative and inactive character. The conduct which held them guilty of contributory negligence did not savor of deliberate rashness, as is the case here. The practice of jumping on moving trains is uni
It is said by appellant’s attorneys that the trial court acquitted the plaintiff of contributory negligence. We do not think so. The-trial judge, in his remarks to the jury, seemed to exclude from consideration, for the purposes of the case, all questions except that of the negligence of the defendant, and directed a verdict because he could find no violation of any duty which the railroad company owed to the plaintiff. But even though he had acquitted the plaintiff of contributory negligence it could not affect our conclusion in the premises. The judgment must be affirmed.
By the Court. — Judgment affirmed.