30 N.W. 922 (Wis. 1886), Schaefer v. Osterbrink

Citation:30 N.W. 922, 67 Wis. 495
Opinion Judge:JOHN B. CASSODAY, J.
Party Name:SCHAEFER, Administrator, etc., Respondent, v. OSTERBRINK and another, Appellants
Attorney:For the appellants there was a brief by Bardeen, Mylrea & Marchetti, and oral argument by Mr. Bardeen. John Livermore and C. F. Eldred, for the respondent.
Case Date:December 14, 1886
Court:Supreme Court of Wisconsin
 
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Page 922

30 N.W. 922 (Wis. 1886)

67 Wis. 495

SCHAEFER, Administrator, etc., Respondent,

v.

OSTERBRINK and another, Appellants

Supreme Court of Wisconsin

December 14, 1886

Argued November 27, 1886.

Page 923

APPEALS from the Circuit Court for Marathon County.

The case is thus stated by Mr. Justice CASSODAY:

This action was commenced by Louis Schaefer, a minor, by his guardian, August 15, 1885, against Everhart Osterbrink and Henry Osterbrink jointly, upon a complaint, alleging, among other things, in effect, that December 25, 1884, while Louis was riding in a sleigh along in the public highway, with his father, the present plaintiff, drawn by a span of small ponies, the defendant Henry, son of the defendant Everhart, while in the employ of, and acting as the agent and servant of, said Everhart, and with his sanction and authority, and within the scope of his authority, drove a span of horses and sleigh belonging to said Everhart along said public highway, behind the sleigh in which said Louis was then riding, so carelessly, negligently, and recklessly that the horses and sleigh of the defendants went against said ponies and said sleigh in which said Louis was so riding, with such force as to crowd the ponies out of the road, and cause them to leap from said road, thereby causing said sleigh in which said Louis was then so riding to suddenly tip nearly over, whereby said Louis was thrown from said sleigh to the ground with such force and violence as to fracture, break, mangle, and bruise one of his legs in such a manner as to necessitate amputation, whereby said Louis was otherwise seriously injured in body and health, to his great damage, etc.

The defendant Everhart separately answered by a general denial. The defendant Henry separately answered, denying that he was, at the time in question, such agent, servant, or acting under the authority of said Everhart; and alleged, in effect, that at the time and place in question the plaintiff, the father of Louis, drove his team up in the rear of Henry in a furious and reckless manner, and attempted to run by the defendant's team, and in doing so ran into a ditch and was upset; and if Louis was injured at all thereby it was caused by his own negligence or the negligence of his said father; and further denied everything not admitted.

At the close of the trial the jury returned a special verdict to the effect (1) that the age of Louis at the time of the accident was nineteen years; (2) that the age of Henry at that time was about twenty years; (3) that prior to that time Henry had been in the habit of driving his father's team to and from church, and elsewhere upon the road, with his father's permission, (4) and was, on the day in question, driving such team in accordance with his previous custom and as his father's servant; (5) that on the day in question, and during Everhart's absence (he was at the time absent in Germany), his daughter, Mrs. Edenhofer, was in general charge of Everhart's family, farm, and property thereon; (6) that the conduct of Henry in attempting to and driving past the Schaefers at the place and in the manner he did, was not reasonably prudent and careful under all the circumstances, (7) but was careless and negligent, (8) and such careless and negligent conduct of Henry was the proximate or direct cause of the accident; (9) that Louis's father was not guilty of negligence in driving or managing his team at the time; (11) that Louis was damaged by the accident in the sum of $ 1,000; (12) that Louis was entitled to recover damages from the defendants jointly, (13) but not against Henry alone; (14) that they assess Louis's damages at $ 1,000.

December 8, 1885, judgment was entered, upon the special verdict in favor of Louis, by his guardian, and against both defendants. Louis...

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