Goldberg v. Berkowitz

The following opinion was filed February 8, 1921: Siebecker, C. J. The appellant insists that the civil and circuit courts erred in holding that the issue of Londs Goldberg’s contributory negligence is properly for determination by the jury, and urges in this court that the evidence shows as matter, of law that he was guilty of contributory negligence. At the time of the accident this boy was nine and one-half years of age. Whether or not the boy exercised due care under all the facts and circumstances disclosed by the evidence [606] must be determined in the light of the care which is ordinarily exercised by children of the same age, capacity, discretion, knowledge, and experience under the same or similar circumstances. Ryan v. La Crosse City R. Co. 108 Wis. 122, 83 N. W. 770; Wills v. Ashland L., P. & S. R. Co. 108 Wis. 255, 84 N. W. 998; Ballard v. Bellevue A. Co. 162 Wis. 105, 155 N. W. 914; Kollentz v. C. & N. W. R. Co. 170 Wis. 454, 175 N. W. 929. The precedents are in general to the effect that in determining whether or not a child exerised the care that one of its age, capacity, knowledge, and experience exercises under similar circumstances, due consideration must be given to the power and influence of childish instincts; for while a child may have the knowledge of an adult respecting dangerous acts, he may not have the prudence, discretion, or thoughtfulness to avoid the hazards and risks to which the)'- expose him. If the facts disclosed by the evidence clearly establish what care was exercised by the child and that he possessed the capacity, knowledge, discretion, and experience of the generality of children of his age, it then became a proper question for the court to inquire as a matter of law whether or not he was guilty of contributory negligence on the occasion in question. The evidence clearly shows that the plaintiff Louis Goldberg was an intelligent boy who possessed the capacity and discretion of boys of his age generally and that he had the knowledge and experience in the affairs of life that boys of his age commonly possess. The evidence shows affirmatively that he had attended the public schools from about his fourth year and that he was familiar with the dangers and hazards in streets and of colliding with automobiles while coasting on the streets. On this subject he testified that he knew it was dangerous because automobiles drive- past; that his folks told him many times to be careful in going across streets. On the point of what he did before and while coasting he says that when he started to [607] coast he borrowed a sled from a’ companion and started up the hill; that two of His playmates, "standing at the'foot of "the hill near the street, had told him no automobile was in sight; that he proceeded to his starting place near the top of the hill; that in his position on the sled he lay on ,his stomach, face downward, with his hands placed so that he could guide the sled; that as he proceeded he did not look up to observe whether or not his course was clear but held his head down between the front of the sled runners; that he did not see or hear defendant’s automobile until they met in the street near the curb opposite the side where he entered onto the street. It appears that the course was icy and that plaintiff was going “pretty fast.” The collision between the sled and automobile occurred near the curb of the street opposite the side where plaintiff entered the street from the hill down which he coasted, thus showing plaintiff had nearly crossed the traveled part of the street before the collision- occurred. It also appears that the automobile stopped within a few feet from the point of collision and that the driver had turned the car to the right onto the street bank. .The evidence and surrounding facts and circumstances show that the highest speed of the automobile was not to exceed sixteen miles, per hour. It thus appears that plaintiff voluntarily adopted a very dangerous method of crossing this public street, that he exercised no precaution after starting on his course down the hill to ascertain whether the street was clear of vehicles of any kind, and that he ran quite recklessly onto the street without even looking up to see whether any vehicle was approaching. He states that he could have guided his sled to either side of his course and could have “shifted” it to avoid obstacles, and that he did not do so. We are forced to the conclusion that plaintiff’s conduct shows that he was actively negligent, in view of his age, capacity, discretion, knowledge, and experience, giving due consideration to the power and influence of boyish instinct while engaged in this sport and to [608] the dangers and hazards to which he was exposed, and that such negligence proximately contributed to produce the injuries complained of. The necessary result is that the court erred in refusing to award judgment in both of these cases dismissing the plaintiffs’ complaints. By the Court, — The judgments appealed from are reversed, and the causes remanded to the circuit court with direction to award judgment in each case dismissing plaintiff’s complaint. A motion for a rehearing was denied, with $25 costs, on April 5, 1921.