Ehrmann v. Cudahy Bros. , 188 Wis. 546 ( 1926 )

Doerfler, J.

A few feet north of the northeast corner of the intersection there is a telephone pole, and it appears from the evidence of the witnesses of the defendant that while the driver of the truck was operating his machine a little to the east of the center of Green Bay avenue the infant suddenly darted out from behind the telephone pole, and before the driver of the truck could exercise any precautions for the purpose of preventing an accident the collision occurred. On the other hand, one of the witnesses for the plaintiffs testified that the infant walked out from the curb to a point a short distance east of the east rail of the north-bound street-car track and there stood for a moment, and' that while standing in this position he was. struck.

The jury found the infant guilty of contributory -negligence, and we will consider such finding in this opinion solely in connection with the alleged negligence, of the defendant. Under the evidence in the case the jury was confined to the adoption of one of two theories — either that the infant walked out onto the street or that he suddenly darted out into the street. The jury also found that the operator of defendant’s truck did not operate the car at an excessive rate of speed and that he did not fail to maintain proper control of his car. In answer to question number 1 the jury found that the driver of the defendant’s truck failed-to keep a proper lookout; and in its answer to question number 2 found that such failure was not a want of ordinary care on his part. In its answer to question number 4 the jury found that the driver of defendant’s truck failed to give a timely warning of his approach; and in its answer to question number 5 found that such failure was not a want of ordinary care. Considering the answers of the jury to the specific questions hereinbefore referred to as a whole, leads to the logical and inevitable conclusion that the jury must have adopted the view that the infant suddenly darted out from the sidewalk in front of the oncoming truck in such a manner that the failure of the driver to keep a proper lookout or to give a timely warning did not proximately contribute to the injury.

Whether a child of the age of the infant should, as a matter of law, be held incapable of being guilty of contributory negligence, it is unnecessary for us in this case to determine. We will say, however, that questions 1 and 2 and 4 and 5, in the form in which they were submitted, are not in accordance with the usual practice in trial courts. One question involving the elements of both 1 and 2, and likewise one question involving the elements of 4 and 5, should have been submitted, and the questions of proximate cause should have been answered. The difficulty in the- instant case, on the subject of the negligence of the driver of the truck with respect to proper, lookout and timely warning, arises solely from the questions submitted. The usual forms of submission followed by the courts are preferable, and in our view conform to proper practice.

By the Court. — The judgment of the lower court is affirmed.