Metcalf v. Consolidated Badger Co-Operative

137 N.W.2d 457, 28 Wis. 2d 552, 1965 Wisc. LEXIS 863
CourtWisconsin Supreme Court
DecidedNovember 2, 1965
StatusPublished
Cited by18 cases

This text of 137 N.W.2d 457 (Metcalf v. Consolidated Badger Co-Operative) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Metcalf v. Consolidated Badger Co-Operative, 137 N.W.2d 457, 28 Wis. 2d 552, 1965 Wisc. LEXIS 863 (Wis. 1965).

Opinions

Wilkie, J.

Seven separate issues, some more important than others, are involved on this appeal. They are:

1. Is there credible evidence to support the jury’s finding of negligence as against Stephen ?

2. Is there credible evidence to support the jury’s apportionment of 70 percent of the causal negligence to Stephen?

3. Did the trial court commit prejudicial error in its instructions concerning the difference in the standard of care owed by the minor plaintiff and the defendant ?

[561]*5614. Was the award of damages so grossly inadequate as to be the result of passion, prejudice, and perversity?

5. Was prejudicial error committed in allowing alleged improper remarks made by respondent’s counsel ?

6. Was it error for the trial court to refuse to submit the case to the jury on a safe-place theory?

7. Was it error for the trial court to refuse to permit inquiry on voir dire into jurors’ interest in the Travelers Insurance Company, the carrier of liability insurance for the defendant ?

We will consider these issues in the order stated.

Negligence of Minor.

Appellants contend that Stephen was free of negligence. Clearly there is evidence to sustain the jury’s verdict that Stephen was negligent in a qualitative sense when he played on the power conveyor. There was testimony that Stephen had played on the conveyor two or three days before the accident (though the conveyor chain was not running at the time) ; that Mr. Tierney, the manager, had told him “to get off the conveyor;” that on the same day Stephen’s mother had warned him not to play on the conveyor; that on the day of the accident Stephen and his companion played on the conveyor and rollers for ten minutes prior to the accident, climbing up the rollers and riding on the conveyor.

Appellants’ basic argument is that a child as young as Stephen was incapable of negligence due to his age (seven years, three months, and ten days). The legislature has given attention to this question and has determined that a child who has not yet reached the age of seven is incapable of negligence. 1 Once he is seven he is capable of negligence though by a lesser standard of care than an adult. It is not for the [562]*562court to tamper with the legislature’s determination that a child of seven can be negligent.

Apportionment of Negligence.

Appellants contend that the Badger Co-operative was guilty of greater causal negligence than was Stephen. We are satisfied that there was evidence of negligence on the part of both the boy and the defendant and that the apportionment of negligence between the two was properly a question of fact to be answered by the jury.2

In apportioning negligence between an adult and a child the jury has to take into consideration the child’s age, capacity, discretion, knowledge, and experience.3 Appellants argue that Stephen acted the way any seven-year-old would have under the circumstances, and that the milk plant was guilty of greater negligence, pointing to (1) Stephen’s playmate’s (also age seven) actions, (2) knowledge on the part of the plant manager that children played on the premises, and (3) general knowledge in the business that children play on the dead rollers and conveyors as evidenced by testimony of other plant operators and warnings in dairy journals.

Apparently the jury, based on Stephen’s conduct just prior to the accident, his prior familiarity with the conveyor, the prior warnings given to him to get off the conveyor, concluded that Stephen should have been aware of the dangers inherent in machinery of the type involved here and that he should have taken steps to protect himself and to avoid the accident.

[563]*563In view of the evidence we concur with the trial court, in its decision on motions after verdict, where it stated:

“On the question of comparative negligence it is felt that a typical issue of fact was presented. . . . The jury could believe, on credible evidence, that the boy was of such age and experience that he knew the hazards which faced him and, in the face of them, gambled for his own pleasure and entertainment. . . .”

Instructions on Comparative Negligence.

Appellants contend that the trial court committed prejudicial error in instructing the jury on the difference in the rule of negligence that applies to the defendant and to the minor plaintiff both in determining negligence, if any, on the part of Stephen and in comparing Stephen’s negligence with that of the defendant.

The trial court’s entire instruction on the question in the verdict concerning Stephen’s negligence was as follows:

“Question No. 3 of the verdict inquires whether Stephen Metcalf was negligent with respect to his own safety. He had a duty to exercise care for his own safety. The care which he was required to use depended upon his age, his capacity, his discretion and knowledge and experience. Negligence on the part of a child is failure to exercise that degree of care which is ordinarily exercised by a child of the same age and capacity and discretion and knowledge and experience under the same or similar circumstances. In determining whether Stephen Metcalf was exercising that care that one of his age, capacity, discretion, knowledge and experience would exercise under the same or similar circumstances due consideration should be given to the child’s instinct and impulses; for, while the child may have the knowledge of an adult respecting dangerou[s] acts, he may not have the prudence, or discretion or thoughtfulness to avoid hazards of risk to which he is exposed. It is for you to determine [564]*564from all of the evidence, weighing it and considering it, what your answer to this question should be.”

On the comparison of negligence the trial court instructed:

“In determining your answer to the comparative negligence question you may bear in mind the difference in the rule of negligence that applies to the defendant and the plaintiff minor boy, and determine this question, No. 5, in the light of the difference in these rules which apply to these parties.” (Emphasis added.)

Appellants contend the latter instruction was erroneous because the court used the word “may” rather than “should.” Appellants did not properly preserve this alleged error for appeal. Appellants did not propose an instruction on comparative negligence, object to the instruction given, or allege that the instruction was erroneous in their motions after verdict. Consequently, appellants cannot now, as a matter of right, avail themselves of this alleged error as a basis for reversal.4 Nevertheless, in our discretion, we proceed to a consideration of this contention on its merits. The trial court should have instructed the jury that, in making its comparison of negligence, it “should” rather than “may” bear in mind the difference between child and adult negligence.5 Nevertheless, viewing the instructions as a whole,6

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Metcalf v. Consolidated Badger Co-Operative
137 N.W.2d 457 (Wisconsin Supreme Court, 1965)

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Bluebook (online)
137 N.W.2d 457, 28 Wis. 2d 552, 1965 Wisc. LEXIS 863, Counsel Stack Legal Research, https://law.counselstack.com/opinion/metcalf-v-consolidated-badger-co-operative-wis-1965.