Thomas v. Tesch

67 N.W.2d 367, 268 Wis. 338, 1954 Wisc. LEXIS 451

• Court: Wisconsin Supreme Court
• Decided: December 7, 1954
• Status: Published

Opinions

Currie, J.

This court, in Shaske v. Hron (1954), 266 Wis. 384, 63 N. W. (2d) 706, held that as a matter of law a child under the age of five and one-half years is incapable of either contributory or primary negligence. The trial of the instant case took place on January 11, 1954, and the order for judgment upon motions after verdict was entered March 3, 1954, while our decision in Shaske v. Hron was not handed down until April 6, 1954. This undoubtedly accounts for the fact that the learned trial judge, submitted an issue ..as to plaintiff’s negligence to the jury and permitted the jury’s finding of causal negligence on the part of plaintiff to stand.

As the plaintiff child in the instant case was under the age of five and one-half years at the time the accident occurred, she was legally incapable of contributory negligence. Therefore, the only issue in the case which remains on this appeal is whether judgment should be granted in favor of the plaintiff for the full $300 damages found by the jury or whether such damages are so inadequate that a new trial should be granted.

The child was rendered unconscious as a result of the accident for a short period of time and her injuries consisted of a fractured clavicle, a hematoma of the right hip which resulted in blood in the hip joint, and bruises, to her knees and face. She was confined to a hospital for one and a half days following the accident. Her shoulder was first merely taped, but, on April 4th, an orthopedic surgeon was called in and he applied a figure-8 plaster cast on the upper portion of her body which resulted in both arms being extended straight out, which cast was not removed until April 23d. On April 4th, when examined by such orthopedic surgeon, the hematoma was such as to prevent plaintiff from moving her right leg, but by April 13th, she was able to walk without a limp. The surgeon testified that plaintiff had ten days of pain and suffering as the result of such hematoma. The fracture of the clavicle healed in normal time and there is no claim made of any permanent disability.

It is our conclusion that the jury’s award of $300 damages is so inadequate that it cannot be permitted to stand. The cause should be remanded with directions that the trial court determine the lowest amount which a fair-minded jury, properly instructed, would probably allow plaintiff for her damages, and upon said amount being so fixed the plaintiff be given the option of accepting said amount or a new trial. See McCauley v. International Trading Co., ante, pp. 62, 71, 66 N. W. (2d) 633; and Costello v. Schult (1953), 265 Wis. 243, 61 N. W. (2d) 296. If the plaintiff shall refuse to accept the damages offered in the option to be extended by the trial court, the new trial thereupon to be had should be limited to the question of damages. We deem that the undisputed testimony of the defendant Tesch clearly establishes his causal negligence as to lookout.

By the Court.- — Judgment reversed, and cause remanded with directions to enter an order in conformity with this opinion.

The following opinion was filed February 8, 1955 :