Briese v. Maechtle

• Decision Date: 05 April 1911
• Citation: 130 N.W. 893,146 Wis. 89
• Parties: BRIESE v. MAECHTLE.
• Court: Wisconsin Supreme Court

146 Wis. 89

130 N.W. 893

BRIESE

v.MAECHTLE.

Supreme Court of Wisconsin.

April 5, 1911.

Appeal from Circuit Court, Ozaukee County; Martin L. Lueck, Judge.

Action by Edwin Briese, an infant, by his guardian ad litem, against Dewey Maechtle, an infant, by his guardian ad litem. Judgment for defendant, and plaintiff appeals. Affirmed.

This is an appeal from a judgment of nonsuit in an action for personal injuries caused by negligence. The facts are brief and undisputed: The plaintiff, a boy between nine and ten years old, and the defendant, a boy ten years and nine months old, attended the same public school in the city of Port Washington, and were friends. At recess on the 25th of March, 1909, both plaintiff and defendant were playing in the schoolyard; the plaintiff playing marbles with two other boys, and the defendant playing tag with some older boys. Just as plaintiff was kneeling down preparing to shoot, the defendant came running around the schoolhouse, being chased by another boy, and accidentally ran or bumped into the plaintiff, knocking him over and by some mischance so injuring the plaintiff's right eye, either by putting his finger in it or forcing the eye against some object, that the sight was completely destroyed. There is no claim of malice or intentional wrong. The appellant's claim is that there was sufficient evidence to entitle the jury to find the defendant guilty of actionable negligence.William F. Schanen, for appellant.

John C. Kleist and T. H. Sanderson, for respondent.

WINSLOW, C. J. (after stating the facts as above).

The action is novel, if not entirely without precedent in the books. Two schoolboys, one a little under and one a little over the age of ten, were playing the time-honored and innocent games of youth in the schoolyard, when by the purest accident one ran into the other and inflicted a serious injury, but an injury which no one could possibly anticipate. Under all ordinary and usual conditions, the only results would be a little shaking up of one or both of the participants, and the accumulation of a little more dust upon already dusty clothes. Had this been the case here, no one would have thought for a moment that there could be legal liability for the act, but unfortunately a permanent injury has resulted to the plaintiff, which will seriously affect his usefulness and his comfort during his whole life, and the fact that such an injury has resulted makes it important that the question of liability should be examined with care, to the end that the conclusion reached should be based on correct principles rather than upon hasty impressions.

[1] The rule is well settled that a minor is responsible for compensatory damages resulting from his torts in the same manner as an adult. No court has laid down this rule more positively than this court in the two cases of Huchting v. Engel, 17 Wis. 230, 84 Am. Dec. 741, which was an action for trespass upon real estate, and Vosburg v. Putney, 80 Wis. 523, 50 N. W. 403, 14 L. R. A. 226, 27 Am. St. Rep. 47, which was an action for trespass to the person, consisting of a kick during school hours. Both of these acts were unlawful acts, and in both cases the liability of an infant for compensatory damages in case of...