216 Wis. 585 | Wis. | 1935
The following opinion was filed November 6, 1934:
If the judgment rendered in this case can be supported, it must be upon two grounds: First, that as a matter of law, the defendant was guilty of no negligence; second, that if the plaintiff was guilty of negligence, the defendant was guilty of contributory negligence as a matter of law.
The facts in this case arose before the enactment of the so-called comparative negligence law so that that law has no application. The defendant seeks to sustain the judgment here upon the ground that plaintiff is guilty of contributory negligence as a matter of law. This position is taken advisedly for there is evidence in the record from which a jury might find that the deceased was guilty of a want of ordinary care with respect to speed, lookout, and perhaps in other particulars. We shall not further consider that aspect of the case.
In determining whether or not the trial court was in error in directing the verdict, this court must take that view of the evidence which is most favorable to the party against whom the verdict is directed. The situation can be best understood, in fact it is difficult to understand it without reference to a diagram, Exhibit 1, which is reproduced herewith:
On the day of the accident it was bright and clear and the streets were dry. After looking in the drug store window on
In a case involving contributory negligence of a child, the question is whether or not the child under the circumstances exercised that degree of care that is ordinarily exercised by a child of the same age, capacity, discretion, knowledge, and experience, under the same or similar circumstances. If the deceased was driving his automobile at an excessive speed, or failed to maintain a proper lookout, or to have his car under such control as required by the circumstances then present, the conduct of the plaintiff must be judged with reference to the facts which existed at the time in question. The evidence is in conflict as to speed, as to whether the boy walked or ran, as to the precise point where the accident happened, and in other respects. It cannot be said that children for their own protection are required to observe any declared degree of care. The vision of the driver was unobstructed, the crossing
By the Court. — Judgment appealed from is reversed, and cause remanded for a new trial.
A motion for a rehearing was denied, with $25 costs, on January 8, 1935.