Matson v. Dane County

Vinje, C. J. A number of interesting questions are argued by counsel on both sides that need not be treated because of the conclusions reached on the facts. Counsel for plaintiffs argue that the findings charging plaintiffs with contributory negligence and constructive notice of the waterhole are not supported by the evidence. As to the latter, a verdict finding that Mr. Matson had actual notice of the existence of the water-hole some time before the drowning would find support in the evidence, and the finding of constructive notice has stronger support therein and cannot be set aside. Had the jury exonerated the plaintiffs from contributory negligence the verdict coulcl not have been disturbed, but they found them negligent. The facts upon which the verdict is based are facts peculiarly within the comprehension of jurors and- their judgment upon the matter must prevail unless clearly wrong. The jury had evidence before them [652] from which they could say that the plaintiffs knew the children had played about the ditch containing the waterhole a few days before; that they did not know whether the ditch was safe; that they had not warned them to keep- away from it; that no one looked for the children from 2 o’clock until half-past 4 in the afternoon; that at 5 o’clock the hired man was sent to look for them but he did not find them, and that no further search was made until 7 o’clock, though the parents knew the children were out in the fields somewhere. An inference of negligence drawn by the jury from such conduct cannot be said to be without a reasonable basis for it in the evidence. Assuming that the jury found the water-hole to constitute an attractive nuisance, still that fact would not bar the defense of contributory negligence or the defense of negligence of the parents, the plaintiffs in this case.- Whatever may be the rule of law as to defenses in cases demanding damages for a condition caused by a nuisance, such rule does not change the law of negligence even where a so-called attractive nuisance is involved. The gist of the action is negligence, and the maintenance of the water-hole in question is found to constitute negligence because it is attractive to children. Most nuisances are .the result of intentional conduct, and as to damages caused by them it -is held in some jurisdictions that contributory negligence is not a defense and- in others that it is. We need not decide that question here because this is per se a negligence case, and contributory negligence 'is a defense though the negligence may result in an attractive nuisance. One of the earliest cases of this kind in our country was Sioux City & P. R. Co. v. Stout, 17 Wall. (84 U. S.) 657, 21 Lawy. Ed. 745, but it as well as other cáses adopting the attractive-nuisance doctrine recognizes, the defense of- contributory .negligence.. See extensive note to same in 8 Rose’s Notes on U. S. Reports, pp. 168 to 188, and note in 19 L. R. A. n. s. 1100. That, in an action by parents for personal in [653] juries to their children their own negligence is a defense was decided in Monrean v. Eastern Wis. R. & L. Co. 152 Wis. 618, 140 N. W. 309. The present action is a joint one by the parents. It was so stated in the complaint, and it is founded upon a joint claim filed by them with the county. Under such circumstances there is no merit in the claim that the jury should have assessed separate damages to each or should have found which parent was negligent in the care of the children. By the Court. — Judgment affirmed. Crownhart, J., took no part.