186 Wis. 574 | Wis. | 1925
Lead Opinion
Two assignments of error are alleged by plaintiff’s counsel. First, it is argued that the court erred
In support of his claim of perverseness plaintiff’s counsel contends that the damages assessed by the jury are so grossly inadequate as to manifest passion and prejudice, and that such passion and prejudice also entered into the answer of the jury wherein they found the plaintiff guilty of contributory negligence. That the damages assessed are not large is beyond dispute, whether we believe the testimony of the plaintiff’s medical expert or that of the defendant. Damages in substantially this amount have been assessed by juries for injuries far less serious, and judgments upon such awards have not only been approved by the lower court, but have been affirmed on appeal in this court. Damages assessed by juries in personal injury cases are the constant subject of attack, upon the ground that they are either excessive or inadequate, and upon either ground verdicts have been set aside by trial courts and new trials granted, and in some instances this court has ordered new trials. The assessment of damages in a personal injury case presents a matter, however, which is peculiarly within the field of a jury to determine. There is no yardstick- or definite standard which can be used as a guide in all cases. Therefore it is to be expected, and experience has actually shown, that the amounts awarded by juries largely vary. Jurors are obtained from the various walks of life, with various degrees of knowledge and experience and with various interests, and, it must be assumed and admitted, with certain prejudices. Jurors are made up of heads of families, married people who are childless, and of many who are unmarried. Unconscious prejudices exist with some in favor of the plaintiff, and with others in favor of the defendant. But after conceding all of these various elements that enter into the make-up of the personnel of the jurors and of the jury, it is largely designed that the average judgment of twelve
It is almost inconceivable that a lurking prejudice can exist in the mind of any juror called upon to sit in judgment upon a case like that of the instant one. The plaintiff was an innocent young girl, approximately two and one-half months less than seven years of age. Every human being who is possessed with’the normal qualities of his kind is a lover of children. Few are those, indeed, who have arrived at mature age who do not retain a vivid impression of their childish instincts, weaknesses, and tendencies, and even without these, impressions a normal person cannot help but observe them, for children are about us and with us at all times and in all places. So that it would seem that the verdict of the average jury would reflect substantial justice, particularly towards an infant plaintiff, in a case like this.
It is within the knowledge of the practitioner at the bar and of the courts that on the subject of assessing damages a great diversity of opinion manifests itself. Some of the jurors on the early ballots may vote for a nominal sum, while others may be in favor of an assessment running high up into the thousands of dollars. Yet, after mature consideration, the various divergent views of the jurors become reconciled, and the result in the vast majority of cases is highly satisfactory and is readily approved by the courts.
In the instant .case we cannot say that we would not have been better satisfied had the verdict been larger, but the question presents itself to us at this stage of the proceeding whether we shall say that the jury was actuated by prejudice or malice in the assessment of damages, especially in view of the fact that the trial judge, who was present at the trial and saw the parties and the witnesses and who heard the testimony, has approved the verdict. There are cases, however, where this court has set aside verdicts on account of perverseness, notwithstanding the approval of the verdict
Plaintiff’s counsel also contends that there is no credible evidence in this case under and pursuant to which the plaintiff could be found guilty of contributory negligence. There are comparatively few cases in the books where juries have found a child of this age, and under similar circumstances, guilty of contributory negligence. In a few of the states an arbitrary rule has been adopted, where .a child less than seven years of age is deemed incapable of being guilty of contributory neglig-ence. Such rule, however, is not in accordance with the weight of authority, and in most of the states the question is one for a jury to pass upon. A complete and exhaustive note upon the subject will be found in L. R. A. 1917F, on page 55, and subsequent pages, where various cases in the appellate courts of the states are digested and reviewed. In this state, with a child of plaintiff’s age, the question of contributory negligence is submitted to a jury under proper instructions. The trial court charged the jury as follows:
“Children are not held to the same degree of care as are adults. The care required of them is dependent upon their age and experience. Eleanor [the plaintiff] is to be held to that degree of care that is ordinarily exercised by children of ordinary care and prudence of her age and experience and intelligence, and to foresee what a child of her age, experience, and intelligence would ordinarily foresee, under like circumstances.”
The trial court, therefore, very clearly differentiated between the degree of care to be exercised by children and that
There is ample credible evidence in the case to show that the driver of the automobile was not operating his car at an unlawful rate of speed; in fact, the jury so found. On the other hand, realizing the danger of operating a motor vehicle upon the public streets of a city at a time when children have been dismissed from school and are proceeding on their way to their homes, notwithstanding the finding wherein the defendant was acquitted of illegal speed, the jury found that he was negligent in not maintaining a proper lookout. Such finding of the jury is well supported by the credible evidence in the case.
There is also ample credible testimony in the case that the child ran into the fender of the machine, which indicates quite clearly that she exercised no regard whatsoever for her own safety immediately preceding the áccident, but that she was engrossed with her fellow pupils in the pursuit of a childish game. Notwithstanding our conviction that the verdict- would have been more satisfactory had the plaintiff been acquitted of contributory negligence, we cannot say that the evidence upon that subject is so weak as to justify a reversal of the case and the ordering of a new trial.
Plaintiff’s counsel strenuously urges that the lower court erred in ordering these two cases tried together, and here the question is presented whether the action of the court resulted in a prejudice of any substantial right of the plaintiff by reason of such order. In 38 Cyc. 1269, it is said:
“The court may order several causes of the same nature in which the parties are the same to be tried together; and where several actions are brought by one plaintiff against different defendants, or by different plaintiffs against one defendant, and the issues are the same in each action, the court may, in order to avoid unnecessary delay and expense, order them to be tried together. It has been held that the*583 order may be made although defendants employ different counsel, and the evidence in the several cases is different. The order does not have the effect of merging the several actions into one. Its only effect is that the suits be tried together. Each case retains' its distinctive characteristics and the judgment in each case is several. And if the proceedings and judgment in either of the cases are erroneous, such error must be fatal to that judgment, although the others may be free from error. It is within the discretion of the trial judge at what time to submit each case to the jury. Where the defenses in the several cases are different it is erroneous to order them to be tried together. But error in ordering a trial of separate causes together is harmless if the final result reached is right.” See, also, notes of numerous cases cited under this text.
This is not strictly a consolidation of actions.
“The term ‘consolidation’ has sometimes been applied to a mere trial of several actions together, but properly a consolidation of actions is to be distinguished from the trial of several actions together, for an actual consolidation involves the union of several actions into one which is tried as such, while where several actions are tried together, although there is but one trial, the identity of the actions is preserved and separate verdicts and judgments rendered. . . . The object of consolidating two or more actions is to avoid a multiplicity of suits, to guard against oppression or abuse, to prevent delay, and especially to save unnecessary costs or expense; in short, the attainment of justice with the least expense and vexation to the parties litigant.” 1 Corp. Jur. 1121.
The reasons as expressed in the order of the court are almost identical with those set forth in the foregoing quotation from Corpus Juris. While in the instant case there were two different parties plaintiff, the facts in each case were identical, and the proofs were identical excepting only that in the father’s case there was evidence of- medical and other expenses for which he might recover, but which could not be considered in the case of the plaintiff in this action.
From the foregoing it follows that the judgment of the lower court must be affirmed.
By the Court.- — It is so ordered.
Dissenting Opinion
(dissenting). I am not unaware that this court has said that questions of contributory negligence of a child as young as this child are for the jury. But in every such case a jury had passed upon the question and found the child free from negligence. I have been unable to find a case in this state where a child of seven or under has been directly held capable of negligence. As a matter of fact, this court in principle early held to the contrary. Meibus v. Dodge, 38 Wis. 300. In that case a man left his
It has always been held under the common law that a child of seven or under cannot be held guilty of crime, and in a case in Iowa the court held that, assimilating the law of crime as applicable to children, a child of seven or under was incapable of negligence. McEldon v. Drew, 138 Iowa, 390, 116 N. W. 147; also see Chicago City R. Co. v. Wilcox, 138 Ill. 370, 27 N. E. 899; Love joy v. D. & R. G. R. Co. 59 Colo. 222, 146 Pac. 263; Gregg v. King Co. 80 Wash. 196, 141 Pac. 340.
This court has never determined the line of demarcation between a child capable of negligence and one incapable of negligence because of age. It has recognized that „a child of five was incapable (Hooker v. C., M. & St. P. R. Co. 76 Wis. 542, 44 N. W. 1085), and it has held that a child of eight years and nine months might be held negligent as a matter of law (Ryan v. La Crosse City R. Co. 108 Wis. 122, 83 N. W. 770).
In the many cases coming before this court on the subject of infant negligence, I have been unable to find a single case where a jury has ever before held a child under eight guilty of negligence.
I think we should hold a child under seven incapable of negligence. That does not mean that a person accidentally
This would be a humane rule and in keeping'with common sense and common experience. A child of seven or under is guided only by instinct or impulse. It does not yield to reason. It keeps out of harm by reason of fear, and it may be depended upon to use such reason and judgment as it has to keep out of danger because of fear of bodily pain.
There is little evidence in the case; it is simple; it is not much in dispute. The defendant was driving his automobile easterly on Martin street, where it crosses Milwaukee street at right angles, at about 3 o’clock p. m. This crossing is near a public school and has signs to notify drivers to that effect. Defendant was familiar with the crossing and the signs. He saw children going from school as he approached the crossing. Three little children were at the northeast corner of Martin and Milwaukee streets, one of whom was the injured child, Eleanor Schmidt. She says she looked west on Martin street and saw the defendant in the middle of the block, and then she and the others started to run across Martin street on a diagonal to the east, her companions in the lead. The latter were ahead of defendant’s machine and escaped. Eleanor was caught, run down, and bodily injured. She did not again look to the west after she started to cross Martin street on a run.
Conceding for the purposes of the argument that a child of seven may be held responsible for negligence, still I feel quite certain that we should say under the facts of this case that the child was free from negligence. If this court may say, as it has, that a child of eight may be held guilty of negligence as a matter of law, then I think we should not hesitate in a case like this to say, as a matter of law, there was no negligence on the part of the child.
This little girl of six summers saw the road open before her, with no auto nearer than a half block, and, knowing she was within the protected school area, hastened across the street, following her little schoolmates. It does not sound reasonable to me to say she was guilty of negligence. It disregards human experience. It places a burden on little children abhorrent to our human' instincts. I don’t think this child should be held guilty of negligence.
I respectfully dissent from the majority opinion.
