Allen v. Bonnar

• Citation: 125 N.W.2d 570,22 Wis.2d 221
• Parties: Mark C. ALLEN, by Harley Brown, his gdn. ad litem, et al., Respondents, v. George Francis BONNAR et al., Appellants.
• Decision Date: 03 January 1964
• Court: United States State Supreme Court of Wisconsin

Page 570

125 N.W.2d 570

22 Wis.2d 221

Mark C. ALLEN, by Harley Brown, his gdn. ad litem, et al., Respondents, v. George Francis BONNAR et al., Appellants.

Supreme Court of Wisconsin.

Jan. 3, 1964.

Whaley & Whaley, Racine, for appellants.

Brown & Black, Harold R. Sheets, Racine, for respondents.

FAIRCHILD, Justice.

1. Finding of causal negligence with respect to lookout. Defendants challenge the sufficiency of the evidence to sustain the finding.

The accident took place mid-block on a city street. It was dusk, about 5:40 p. m., October 12, 1958. Bonnar's headlights were on low beam, and a street light was hanging almost directly above the point of impact.

Bonnar was driving east at about 20 m. p. h. Mark and a little girl had been playing in the yard north of the street, and ran across the street, with Mark in the lead. The street was 36 feet wide, and Bonnar was traveling south of the center. There was no other traffic nor parked cars. Bonnar did not see either of the children except that he saw a 'flash' or 'shadow' in front of his car and slammed on his brakes. The right front portion of his car struck Mark, but the little girl was not hit. The car skidded ten feet before the impact, and eight feet thereafter.

Mark traveled 18 feet from the north curb to the center of the street, and eight feet more to the point where he was hit. Defendants suggest that it took Mark between two and three seconds to move from the north curb to the point of impact. If the interval was two seconds, Bonnar was almost 60 feet from the point of impact when Mark entered the street; if three seconds, he was almost 90 feet away. It would take about 44 feet to stop (including reaction time) at 20 m. p. h. The jury could reasonably find that Bonnar should have seen Mark when he entered the street, and could have avoided the accident if Bonnar had done so.

Defendants rely upon several decisions where a motorist has been found as a matter of law not to be negligent when a child ran into a car from the side, or there was some other justification for not seeing the child or pedestrian in time. ¹ These decisions are distinguishable on their facts.

2. Damages for impairment of earning capacity. The special verdict contained two questions on damages. The first inquired as to the amount which would compensate the child's father for medical and hospital expenses, and was answered by the court. The second inquired as to the assessment of the child's damages for 'his pain, suffering, and injuries.' The court gave the following instruction to the jury:

'If you become satisfied that the plaintiff has sustained an impairment of his ability to make earnings in the future as a consequence of his injuries, you will then include in your answer to this question such further sum as will fairly and reasonably compensate him for such impairment of earning ability.'

There was evidence of permanent injury which, particularly with respect to hearing loss, would probably impair Mark's earning capacity to some extent.

Defendants make two contentions. One is that the instruction would permit the jury to award Mark such loss of earning capacity as he might sustain before reaching age 21, although any earnings before that age would belong to his father. The father, however, was also a plaintiff, and if the manner in which the court submitted the case to the jury resulted in any award to Mark which should have gone to his father, defendants are not entitled to complain.

Defendants' second contention appears to be that in the absence of proof that Mark had or would have had the capacity to earn, there is no foundation for an award of impairment of earning capacity. This contention would exclude most children, however seriously injured, from allowance of damages for inability to earn after reaching majority.

We think the contention has been well answered by the supreme court of Minnesota with respect to a boy of three and a half years of age, as follows:

'The evidence was clearly sufficient to warrant a finding that Todd's future earning capacity will be impaired. Even though the extent of that impairment is extremely difficult to evaluate in the case of this young child who is far removed by years from even demonstrating an earning capacity, we can find no basis in principle or reason to hold that the rule should be limited in its application because of the age of the injured party where there is sufficient evidence of permanent disability. Its application must be left to the jury, subject to the admonition as here given by the court to refrain from making a determination based upon speculation, conjecture, passion, or prejudice, and subject further to the post-verdict scrutiny of the trial judge. * * *' ² This court has said that a minor may recover for loss of earning capacity after majority. ³

3. Damage award not excessive. Defendants contend that the $41,000 award was highly excessive and rendered the verdict perverse. Judge Goodland, in deciding motions after verdict, stated that in his opinion the award was within the bounds of reason, and not the result of passion, prejudice or perversity.

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