Secard v. Rhinelander Lighting Co.

The following opinion was filed November 14, 1911: MARSHALL, J. It is not claimed, with confidence, that there was no jnry question respecting actionable fault on the part of defendant. The subject is merely suggested and submitted. It is considered that like brief treatment will suffice here. The evidence has been examined. There is no controversy as to what was done and left undone by defendant. Is it consistent with ordinary care, in view of the known fact that young children, yet old enough to go to school unattended and otherwise to be upon the street, are liable to be near excavations, and in view of the common knowledge that such children of little judgment are quite likely to be attracted by such things, to leave them unguarded, as in this case ? It does not seem difficult to answer that. It is conceded that it is dangerous for a child to walk around the edge of such a hole. The whole case for appellant is grounded on that theory, and that danger was so apparent that the child, upon being admonished to keep away from the hole as there was danger of her falling into it, should have known and appreciated the risk she took. That defense, under the circumstances, is a confession that appellant created a serious danger by which children, lawfully in the street, were liable to be injured. So it is considered that there were at least reasonable inferences in respondent’s favor as regards whether there was actionable negligence, barring contributory negligence. — 619 — Was the child, guilty of efficient contributory fault ? The argument to sustain the affirmative is based wholly on the theory that she was admonished to step hack from the hole and, in face of that, remained and did the thing which led to her death; — fell in as she was admonished might he the case, and the cave-in followed. The chief support of such contention is the claim that the child fell into the excavation before there was breaking down of the surface, and that the disturbance by her person in the hole caused the cave-in. A very ingenious argument on that appears in counsel’s brief, but it is far from conclusive. The fact that no part of the child’s body was at the bottom of the hole or very near to it, strongly rebuts the theory that she fell in before there was any caving. Again, the general location of her person further rebuts it. So if it were vital to the case to determine whether the child fell in and the earth then caved, or the giving away of the earth under her feet, or close to them, caused the fall, there was a fair jury question on the evidence. The claim is made that the evidence shows a clear case of inexcusable carelessness of the child, because she was admonished of the danger of being near the brink of the excavation, Ryan v. La Crosse City R. Co. 108 Wis. 122, 83 N. W. 770; Wills v. Ashland L., P. & St. R. Co. 108 Wis. 255, 84 N. W. 998, and similar cases being relied on. They were grounded upon the principle that children as well as adults are bound to exercise ordinary care for their own safety to the extent which they may reasonably be expected, under all the circumstances, to know and appreciate perils of personal injury. So it was said, in effect, in the first case, that, a child,— accustomed to street cars at the early age of eight or nine years, and knows of the liability of one passing on the track at any time, especially that one may do so at or near a particular time and knows the danger of being, then on the track, — a — 620 — child old and intelligent enough to know that to walk upon or so near the track as to be within reach of a car regardless of whether one is about to pass, is perilous, — who goes under such circumstances within the pathway of a car is guilty of fatal want of ordinary care. All the authorities along that line turn upon the principle that, as to any given event, a child is responsible for just such care for his own safety as may reasonably be expected of one of its age, development, and intelligence under the circumstances characterizing the particular event. Klatt v. N. C. Foster L. Co. 97 Wis. 641, 73 N. W. 563. So it follows that, while the principle discussed is hxed in its scope, circumstances so alter cases, that the decision in one case does not cast much light upon the right of another further than that the rule of personal responsibility for personal safety, within stated general limitations, applies to children ,as well as adults. To that extent the cases cited by counsel for appellant apply here, but such application in view of the particular facts, falls far short of showing that deceased was guilty of contributory negligence as a matter of law. One fatal difficulty with the position of appellant’s counsel, is that the child was not admonished of any danger of the earth she was standing on or near, giving away at the surface, as there is evidence, it is thought, from which the jury might reasonably have come to the conclusion, was the case. She had full confidence in her ability to walk around the hole without any danger of falling in, and demonstrated her capac-. ity in that respect by jumping across the hole and preparing to jump back. It was such breaking down of the surface, precipitating her, as it were, into the hole, as the jury may reasonably have concluded, which caused the mischief. She had no warning of such a danger. Whether she ought to have known of it without warning, is by no means clear. So the matter was properly submitted to the jury. — 621 — We note counsel for appellant claims that tlie element of appreciation of known danger, or appreciation of the danger of known situations, does not apply to súch. a case as this,— that it only applies to where the relations of master and servant exist. That is a novel idea and wrong as it is novel. It applies in many situations involving the conduct of persons so young that they cannot reasonably he expected to possess substantially the judgment of adults. When an adult or person of general intelligence of an adult knows, or ought reasonably to know, the facts, he is presumed to comprehend and appreciate danger incident thereto. Hot so as to a young child old enough to he chargeable with some degree of care for its own safety, but not that of persons generally, or even children of its age generally. So while the term “comprehend and appreciate” is confusing and often out of place in reference to the responsibilities of an adult or experienced person, it is proper, and generally necessary, as to that of such children. True, the law in this regard is more commonly invoked in regard to the relations between master and servant, but the principle of it applies in any situation where the question is vital as to whether a child exercised ordinary care for its own safety. So it seems that there was a fair question for the jury on the evidence in this ease as to whether the deceased knew, or ought, under the circumstances, to have known, and appreciated the danger of the earth caving from under or near her feet and causing her to fall into the hole. Of such an event she had no warning. That it was just such an event which led to her death, the jury may reasonably have concluded from the evidence. Complaint is made because the court, in referring to testimony relating to a vital question, did not refer to all of it. We fail to discover the court made any attempt to cite to the jury the details of the evidence. The references thereto were — 622 — made in most general terms and carried the idea, plainly, that the evidence, and all of it, hearing on the question was to he considered, though those precise terms were not used. The court may properly refer to features of the evidence, making no attempt to give particular prominence to any part so as to suggest the weight that should be given thereto. If, in referring to the evidence, any particular material feature is inadvertently omitted and attention is not seasonably called thereto, there is no assignable error in regard to the matter, and no prejudicial error in any event, unless it appears that the omission may, probably, have affected the result unfavorably to the party complaining. Complaint is made because the funeral expenses were allowed to be considered in determining the damages. No error was committed in that regard. It plainly constituted pecuniary loss of the father for whose benefit the action was brought. Moreover, whether the trial court in correcting the verdict removed that element, does not appear. That may have been the intention. There is no complaint as to the amount of the verdict on the ground of excessiveness. However, to avoid danger of the recovery being referred to as a precedent, it seems well to say that in cutting down a verdict as erroneous and compelling defendant to submit to a reduced amount at the plaintiff’s election, care should be exercised not to invade the constitutional right of trial by jury. That is to be avoided, as this court has often held, by fixing the optional amount at the minimum which a jury might rightfully allow on the evidence instead of the maximum. Baxter v. C. & N. W. R. Co. 104 Wis. 307, 335, 80 N. W. 644; Beach v. Bird & W. L. Co. 135 Wis. 550, 560, 116 N. W. 245. The primary idea, in such a case, is that the verdict of the jury is prejudicially erroneous, requiring it to be set aside, — that the verdict is characterized by fatal error. The next idea is to correct the error without a new trial, without prejudice to the constitutional right of trial — 623 — by jury. That is clearly done, as suggested by Mr. Justice Timlin, speaking for the court in the last case cited, by fixing the optional amount as low as a jury, acting within its province, could be reasonably expected to place it. The trial court, as seen by the opinion, put the amount here somewhat more than the maximum a jury would be permitted to place it, and failed to take note of the fact that a sum paid presently is much greater, in the practical sense, than a like sum paid years in the future. These observations are made, as before indicated, to guard against the course followed being referred to by or in trial courts as'a guide. Whatever prejudice, if any, there was to appellant by such course, is irremediable because the question in respect to the matter was not saved for review. Moreover, no assignment of error was made in respect to it. By the Court. — The judgment is affirmed. A motion for a rehearing was denied January 9,1912.