Reber v. Hanson

• Citation: 51 N.W.2d 505,260 Wis. 632
• Parties: REBER et al. v. HANSON et al.
• Decision Date: 05 February 1952
• Court: United States State Supreme Court of Wisconsin

Page 505

51 N.W.2d 505

260 Wis. 632

REBER et al. v. HANSON et al.

Supreme Court of Wisconsin.

Feb. 5, 1952.

Rehearing Denied April 8, 1952.

The action is to recover damages for the wrongful death of plaintiffs' infant son. The accident occurred August 17, 1950. Judgment for defendants was entered May 9, 1951.

John Reber operated a rural cheese factory in a building which contained the family living quarters. His wife, two daughters, aged three and four years, and his son, John, twenty months old, lived there with him. Circling the building was a driveway used by truckers to deliver milk to the factory and take away the cheese. A fence once separated the factory's lawn from the driveway but it had fallen into disrepair and the gate was gone. John was accustomed to play in the driveway and was often seen there by other frequenters. The parents told their children not to play in the driveway and sometimes removed them from it, and Mr. Reber told the truck drivers to watch out for his children who might be in the way, but both parents knew that John did play there and neither took any precaution to make it difficult or impossible for him to get out of the house or yard and into the driveway while deliveries were being made.

On the day of the accident the trucks of Stilwell and Hanson were parked in the driveway near the platform where milk was delivered to the cheese factory. Mr. Reber was at work in the factory and Mrs. Reber was dressing one of her daughters who had slept late. John had been in the driveway when Hanson arrived with his load and had been lifted out of the way by Mrs. Stilwell. Hanson unloaded his milk and prepared to leave. As he went around his truck making it secure for the trip, he saw John sitting in the driveway near the wall of the factory looking at a book. Hanson's truck was headed south and the child was slightly behind it and approximately fifteen feet to the west side of it. Hanson thought John would stay where he was and he got into the cab and started his engine. He testified that he then took a last look out of the right door of the cab and saw John where he had been before. Hanson next drove ahead slowly about thirty feet and then stopped at a shout from Stilwell, and discovered that his rear right wheel had run over the boy and killed him. Other witnesses saw John looking at the book, at the place described, before Hanson put his truck in motion. No one saw John after that until he was run over and no one can say when and how he left the safe place and came into the place of danger approximately forty feet from where he had been sitting with his book.

The jury found that Hanson was causally negligent twenty-five percent and the parents (plaintiffs) seventy-five percent causally negligent. Judgment for the defendants was given on the verdict. Plaintiffs have appealed.

Doar & Knowles, W. T. Doar, Jr., and John Doar, all of New Richmond, for appellants.

Slocumb & Bundy and Ronald J. Carey, all of Menomonie, for respondents.

BROWN, Justice.

'The legal obligations of parenthood include the duties of support, of care and protection, and of education. * * *' 39 Am.Jur. p. 593-594, Sec. 6.

'It is the right and duty of parents under the law of nature as well as the common law and the statutes of many states to protect their children, to care for them in sickness and in health, and to do whatever may be necessary for their care, maintenance, and preservation, * * *. A parent in the immediate control of a child of tender years who is too young to be capable of exercising any self-reliant care for its own safety is responsible for its preservation from hazards, and it is the parent's duty to watch over such child and guard it from danger. In such case, the parent may be regarded in a sense as a repositary of a trust to nurture and protect his offspring. Parents are, of course, not required to do the impossible in caring for their children. As a rule, however, they are bound to provide such reasonable care and protection as an ordinary prudent person, solicitous for the welfare of his child, would deem necessary * * *.' 39 Am.Jur. pp. 669-670, Sec. 46.

On this appeal the most important question is whether the causal negligence of John's parents is a joint or a several matter; differently stated, whether each parent is guilty of all the negligence alloted by the jury to both parents or whether that negligence is divisible between them in portions which, when combined, total seventy-five percent of all the causal negligence. There can be do doubt that in the abstract the duty to protect one's child is an obligation of parenthood, not of fatherhood more than motherhood or vice versa. We find no case and do not believe any exists in which the sex of the parent excuses the exercise of less than reasonable care in the performance of this obligation. The duty is that of each parent and neither is excused from observing it. When the facts of a case have made it appropriate, we have recognized that the failure to perform the duty was that of one parent alone and in such circumstances have not imputed the negligence of that parent to the other to affect the recovery of damages by the latter. Such a case is illustrated by Hansberry v. Dunn, 1939, 230 Wis. 626, 284 N.W. 556, on which the appellants rely, where a child riding with its mother in an automobile was killed through the contributory negligence of the mother. The father was not present and it was not negligent of him to permit the mother to take the child on the drive. No breach of his duty could be found and hence his right to recover under the wrongful death statute, secs. 331.03, 331.04(2), was not...