Quinn v. Ross Motor Car Co.

157 Wis. 543 | Wis. | 1914

Wirslow, O. J.

In this case it is held:

1. Ordinary care in the case of a child like the plaintiff is only such care as the great mass of children of his age, intelligence, and experience ordinarily exercise under the same or similar circumstances. Briese v. Maechtle, 146 Wis. 89, 130 N. W. 893. It is error to apply to such children the tests of ordinary care which are applied to adults, and in the present case that error seems clearly prejudicial.

2. In view of the fact that the plaintiff’s conduct is to be tested by the rule applicable to children and not by the rule applicable to adults, it cannot be said, as contended by tbe defendant, that tbe plaintiff was guilty of contributory negligence in tbis case as a matter of law.

3. Nor can it be beld, as contended by tbe plaintiff, that tbe answers to questions 6 and 7 of tbe verdict establish a case of gross negligence.

By the Court. — Judgment reversed, and action remanded for a new trial.