Kashuda v. Adams Express Co.

Vinje, J. ■ There was credible evidence from which the jury could find that the driver asked plaintiff to get the feed box from the yard; that he gave plaintiff the empty feed bag after he had put the oats in the box; that he told him to put the bag in the wagon; that the driver went into the yard before hitching the horse, and that plaintiff in obedience to the request to put the bag in the wagon climbed up on the seat and reached back to put the bag under or behind the seat, that being the place it was usually kept, when empty; and that while he. was so engaged the horse ran away and his leg.was injured by the ankle being crushed between the wagon and a telephone pole. The trial court refused to disturb the first three findings covering defendant’s negligence and its proximate cause of the injury. It is urged by the defendant that the court erred in so doing because, in the absence of an invitation on [27] the part of the driver to put the bag in the wagon, no actionable negligence on its part is shown; if an invitation was given, the defendant cannot be charged with knowledge or the consequences thereof, citing Miller v. Mead-Morrison Co. 166 Wis. 536, 166 N. W. 315, and Webster v. Corcoran Bros. Co. 156 Wis. 576, 146 N. W. 815. In the former case the defect was a latent one, and it was held npt chargeable to the defendant because the case was classed as one where a manufacturer puts out an article having a latent defect for which he is not responsible in the absence of knowledge thereof. This is no such case. In the latter case counsel mistakes the gist of the decision. There, as here, plaintiff had been directed by defendant’s employee to do an act in the prosecution of his work, viz. straighten out a kink in a rope, — and it was held that defendant was liable because there was not only a breach of duty to keep plaintiff away, but “on the contrary there was an invitation to do the very thing which duty required ordinary care to prevent.” Page 580. The court therefore properly refused to set aside the findings that defendant was negligent and that such negligence was the proximate cause of plaintiff’s injury. Can it be said as a matter of law that plaintiff was guilty of contributory negligence ? When the danger is obvious and easily appreciated by children of even tender years, this court has held them responsible for their conduct to practically the same degree that adults are, as in Ryan v. La Crosse City R. Co. 108 Wis. 122, 83 N. W. 770, where a boy eight years and nine months old attempted to cross in front of a moving street car; or as in Ballard v. Bellevue A. Co. 162 Wis. 105, 155 N. W. 914, where a girl eleven years old, contrary to orders, used an automatic elevator in an apartment building. But where the danger is more remote, latent, and not so obvious, it is usually a question for the jury to say whether the child appreciated the danger to such an extent that it could be held [28] responsible for its conduct. To the average boy, climbing upon a wagon to which a horse is hitched while it is feeding probably does not spell much in the way of danger, especially when the driver is near and has suggested if not directed thé boy’s act. The jury has said that such an act on the part of a boy seven years and ten months old is under such circumstances not negligence. We cannot say that such conclusion is wrong. Ewen v. C. & N. W. R. Co. 38 Wis. 613; Secard v. Rhinelander L. Co. 147 Wis. 614, 133 N. W. 45; Kelly v. Southern Wis. R. Co. 152 Wis. 328, 140 N. W. 60; Webster v. Corcoran Bros. Co. 156 Wis. 576, 146 N. W. 815. The probability .of the horse becoming frightened and running away no doubt seems remote to a boy eager to sit on the driver’s seat. To say that he does not appreciate such a danger to the same extent as an adult is reasonable. It is true that in this case the driver denied that he requested the plaintiff to bring the feed box or to put the empty bag in the wagon. On the contrary, he says he told him to keep away from the horse and the wagon. But the jury had a right to believe plaintiff’s account of what took place. The court should not have disturbed the verdict as to plaintiff’s freedom from contributory negligence. Assuming, but not deciding, that the parents’ negligence would bar recovery, the question arises, Were the parents negligent ? They knew the boy was in the habit of playing around the horse and wagon and both had often scolded him for so doing, had forbidden him to do so, but had never punished him for disobedience of such orders. The father had remonstrated with the driver for letting his boy and other children play on and about the wagon. On the day in question the father was away at his customary work, and the mother was also away at work because of the necessity therefor. Plaintiff and his younger brother were left at home in the care of a fourteen-year-old sister. The stress of present economic conditions no doubt often puts the [29] earning capacity of the mother as well as that of the father *to the test in order to support a family. Plaintiff’s parents lived in a house surrounded by a yard in an ordinary residence street. To leave the boys there with a fourteen-year-old sister while the parents earned a livelihood does not constitute negligence as a matter of law as to the care of the children, even in view of the known propensity of plaintiff to play on or around the wagon. Parents cannot give their whole time to the supervision of their children, especially those under the necessity of earning a living. Monrean v. Eastern Wis. R. & L. Co. 152 Wis. 618, 140 N. W. 309. The jury could well say that the conduct of the parents measured up to that standard of ordinary care usually exercised by ordinarily careful and prudent parents under like or similar circumstances. Since the verdict as to the parents’ lack of negligence finds support in the evidence, the court should not have set it aside, but should have entered .judgment for plaintiff on the special verdict as returned by the jury. By the Court. — Judgment reversed, and cause remanded with directions to enter judgment for plaintiff upon the verdict returned by the jury.