Paradies v. Woodard

156 Wis. 243 | Wis. | 1914

KeRWIN, T.

Tbe only question involved upon this appeal is whether tbe complaint states a cause of action against tbe defendant John Woodard. Tbe chief contention of counsel for appellant is that tbe allegations of negligence are not sufficiently specific to constitute a cause of action. It will therefore be necessary to examine briefly tbe allegations of tbe complaint in so far as they purport to state negligence on tbe part of tbe minor defendant, John Woodard.

Tbe complaint alleges in substance that John Woodard is tbe son of William Woodard, and is between thirteen and fourteen years of age, and resides with bis father; that on May 6, 1912, defendant William Woodard authorized and permitted bis said son to use a bicycle and run tbe same at all times as bis said son saw fit; that on said May 6, 1912, while using, and managing said bicycle, said John Woodard drove the same in tbe playgrounds of tbe public school in Watertown, Wisconsin, where tbe plaintiff then was with other children attending tbe school, and so drove and rode said bicycle carelessly, negligently, and with such want' of ordinary care as to cause, permit, and allow said bicycle in rapid, motion to strike, knock down, and run over tbe plaintiff so that tbe plaintiff thereby suffered injuries, that is to say, plaintiff’s right leg was broken in several places and bis right leg was maimed, mangled, and bruised and other parts of his body injured.

Tbe complaint further alleges that1 ordinary care required, and it was the duty of the defendant, at the time and place in question, not to run or ride said bicycle on the playgrounds of the school house where plaintiff was injured, such use being expressly forbidden by the teachers of the school, under whose control the grounds were at the time in question; that it was the duty of the" defendant's in the exercise of ordinary care, if said bicycle was run at all upon said grounds, to run it at a slow speed with a vigilant outlook maintained, and if run or ridden at all on said grounds at the time in question, not to be ridden by more than one person, and to give warning to all persons in the path of said bicycle; that at the time of the injury another boy was riding with defendant John Woodard, and the said defendant failed to perform the duties hereinbefore mentioned and at the time and place in question so negligently ran said bicycle as to cause the injuries to the plaintiff, and that said instances of want of care and failure to perform the duties specified on the part of the defendants were the proximate cause of the injuries sustained.

Counsel for appellant contends that the mere riding of a bicycle on the playgrounds in rapid motion is not negligence nor unlawful use of the bicycle, and that negligence will not be inferred in such case if an accident result, and that there is no averment in the complaint as to whether there were many other children or persons on the playground; and further, that it is not unlawful or negligence for two boys to ride upon the same bicycle at the same time, and that the complaint is silent as to what plaintiff was doing when the bicycle struck him. The mere riding of a bicycle alone might be innocent sport, but riding it negligently with such force and violence as to carelessly and negligently run into another and injure him as plaintiff was injured here may constitute actionable negligence. What the plaintiff was doing when struck is immaterial if he was not guilty of contributory negligence, and contributory negligence is defensive matter. Harper v. Holcomb, 146 Wis. 183, 130 N. W. 1128. It is not necessary that the complaint negative contributory negligence. The specific allegations of the complaint, taken in connection with the general allegations of negligence on the part of the defendant John Woodard, are sufficient on demurrer under the decisions of this court. Hanson v. Anderson, 90 Wis. 195, 62 N. W. 1055; Fitts v. Waldeck, 51 Wis. 567, 8 N. W. 363; Young v. Lynch, 66 Wis. 514, 29 N. W. 224; Doolittle v. Laycock, 103 Wis. 334, 79 N. W. 408.

It is also said that it is not negligence for two boys to ride upon the same bicycle at the same time. The allegations of the complaint, however, show that' in the instant case the bicycle was more difficult to manage and control when being ridden by two persons, and that the collision under such circumstances was rendered more dangerous and destructive.

The complaint should be liberally construed on demurrer. Darlington v. J. L. Gates L. Co. 142 Wis. 198, 125 N. W. 456; Hall v. Bell, 143 Wis. 296, 127 N. W. 967. The case of Hanson v. Anderson, supra, is quite analogous to the instant case. The allegations there were to the effect that defendant drove his team at a great' speed along the highway, and came up behind the plaintiffs vehicle and negligently ran into it. The allegations were held sufficient on motion to make the complaint more definite and certain.

It is well settled that infants are liable for their tortious acts. Citation of authority on this point is unnecessary.

The learned counsel for appellant cites us to several Wisconsin eases, and discusses them at length in his brief, which he contends sustain his position that the complaint fails to state a cause of action. We have examined these cases carefully and think they do not support counsel’s contention. We shall not prolong this opinion by a discussion of them. We think the allegations of the complaint, admitted on demurrer, state a cause of action against the defendant John Woodard, therefore the order overruling the demurrer must be affirmed.

By the Court. — The order appealed from is affirmed.