Ballard v. Bellevue Apartment Co.

Maeshall, J. The main question presented for consideration on this appeal is whether plaintiff was guilty of contributory negligence as a matter of law, and as we view the evidence bearing thereon, the solution thereof is decisive of the cáse, rendering unnecessary consideration of other matters discussed in the briefs of counsel. Notwithstanding the liberal rule in cases of this sort in favor of children, respecting responsibility for their acts imperiling their personal safety, as indicated in Secard v. Rhinelander L. Co. 147 Wis. 614, 133 N. W. 45, and Kelly v. Southern Wis. R. Co. 152 Wis. 328, 140 N. W. 60, which we will say, in passing, are quite distinguishable from this casq, circumstances may be such as to conclusively show want of ordinary care on the part of a minor, as a matter of law, proximately contributing to its injury, as indicated in Ewen v. C. & N. W. R. Co. 38 Wis. 613; Strong v. Stevens Point, [110] 62 Wis. 255, 22 N. W. 425; Reed v. Madison, 83 Wis. 171, 53 N. W. 547; Ryan v. La Crosse City R. Co. 108 Wis. 122, 83 N. W. 770. That has been held as to children much younger than the respondent was when she was injured. The respondent, according to the evidence, was rather above the average of children of her age, as to intelligence, education, and experience. She knew just as well as an adult could have known that she had no business meddling with the elevator. She knew and appreciated that children of- her age had been prohibited by the proprietor of the building from doing so. She knew she was so prohibited in order to safeguard her from being injured. The proprietor had done everything which reason required to prevent such children from using the elevator without being with adult persons. She had been admonished, again and again, by her parents and others, not to do so. Just before the particular occasion, her attention was directed to the posted rule in respect to the matter, and she was warned not to transgress it. Nevertheless, she persisted, fully conscious that she was doing wrong, and accepted whatever danger there was involved in her transgression. If the law, as heretofore administered, is to be maintained, that a minor of the age plaintiff was can be guilty of contributory negligence as a matter of law, it seems that this case involves such an instance. We are not prepared to change the long line of decisions on the subject. Therefore we have reached the conclusion that respondent was guilty of such negligence and that the case should have been disposed of below accordingly. By ihe Gourt. — The judgment is reversed, and the cause remanded with directions to change the answers in the special verdict so as to favor appellant on the subject of contributory negligence of the plaintiff and render judgment thereon dismissing the action with costs. -■ Timlin, J., dissents.