Hanson v. Binder

50 N.W.2d 676, 260 Wis. 464, 1952 Wisc. LEXIS 264

• Court: Wisconsin Supreme Court
• Decided: January 8, 1952
• Status: Published

Opinions

Fairchild, J.

On this appeal we are concerned primarily with the validity of the order of the circuit court granting a new trial. As to this question we are, as often happens, confronted by a situation where reasonable minds may differ; but as the general conduct of a trial is largely within the discretion of the presiding judge, acts, mistakes, and incidental events intervening, which unfairly influence the result, may warrant, if not require, a new trial in the interests of justice.

There is no question as to the presence of causal negligence on appellant’s part; nor is there any question but that the respondent child ran out into the path of appellant’s car.

The comparison of negligence fixing the percentages at sixty-two per cent as chargeable to the respondent and thirty-eight per cent as chargeable to the appellant was made without due appreciation of the difference in the ordinary care required of each party.

In granting the order for a new trial, it is apparent that the trial court was of the opinion that while no children had gathered to engage in play on the sidewalk'or in the vicinity of the accident, there was evidence of importance in the matter of consideration by the jury as to whether or not a situation existed which placed upon appellant the responsibility of exercising a special degree of care with relation to the safety of children. We say this because it is apparent that the- trial court concluded that there was evidence to- the effect that the respondent was following the older boy, who crossed immediately in front of appellant’s automobile without being seen by the appellant; and the respondent, who followed, was likewise unseen until after he had been struck by the left front corner of the car.

There was sufficient reason in the mind of the trial court, based upon evidence, to warrant a holding that there should be a re-examination of the circumstances which indicated that proper attention to the driving by the appellant would have enabled him to see the first boy and would have apprised him of the presence of children, thus calling up the duty of special care to avoid injury to one of them.

The trial court regarded the comparison of negligence as a jury question and did not attempt to take the matter of fixing the percentage of negligence out of the realm of the competence of the jury. He recognized that the appellant was not an insurer of the child. It appears in the evidence that while the' child had not been specifically instructed at home or in school with relation to the danger of crossing streets, he had, however, not been permitted to do so except when accompanied by an older person.

What is ordinary care in the case of an adult, experienced driver is different from ordinary care on the part of a child so young that he has barely reached an age where he can be held to any standard of care whatever. The mere fact that, in this collision between the two, the jury found that the child was more negligent than the adult demonstrated to the court’s satisfaction that the jury did not appreciate that different standards of ordinary care apply to these different actors. There must be a comparison of negligence, but for the reasons set forth, we agree with the learned trial judge in holding that the interests of justice require a new trial. We cannot say under the circumstances that the court exceeded its authority or that there is an abuse of discretion. Ruka v. Zierer, 195 Wis. 285, 218 N. W. 358.

By the Court. — Order affirmed. Respondent to have his costs in this court, but the costs below to abide the event.