Hanson v. Halvorson
| Decision Date | 16 October 1945 |
| Parties | HANSON v. HALVORSON et al. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from an order of the Circuit Court for Polk County; Carl H. Daly, Judge.
Affirmed.
Action by Arland Emanuel Hanson, by Emanuel Hanson, his guardian ad litem, against Oscar Halvorson and another to recover damages for injuries to a child. From an order entered March 20, 1945, denying a motion by defendants for a summary judgment, the defendants appeal.
Coe & Cameron, of Rice Lake, for appellants.
F. E. Yates, of Amery, for respondent.
This is an appeal from an order denying a motion of the defendants for a summary judgment. The defendant Halvorson struck a three year old child while driving his automobile on a resident street in a small city. The complaint alleges that he was negligent and demands compensation for the child's injuries. The defendants moved for a summary judgment on the affidavit of Halvorson. His affidavit states facts as he claims them to be. The father of the child presented his affidavit in opposition. Halvorson did not see the injured child before the collision. The child's father did not see the collision, but heard the thud of it and ran out from his home and picked the child up. In absence of cross-examination, each affidavit leaves unsaid as much as it says about circumstances in the affiant's knowledge which are material on the question of defendant's lookout. The affidavits differ as to some of the circumstances as to which they do speak. The affidavits include conclusions of law and much argument, which of course are immaterial as to lookout. The bare facts stated are as follows:
Halvorson's affidavit states that he was driving south in the middle of the west traffic lane of the street at twenty miles per hour; that two or possibly three automobiles were parked on the west side of the street parallel with it; that a five year old child was crossing the street in front of his car in the center of the block; that this child proceeded to or a little beyond the center of the street, so that the child ‘if it did not turn back was completely across the path’ of defendant's car; that Halvorson did not see any other child than this one; that about the time this child had arrived at the center of the street he heard a thud; that he stopped his car and got out and discovered the plaintiff child eight feet behind and slightly to the west of the right rear wheel of the car.
The father's affidavit states that at the time of the accident he was sitting in his home; that he ‘heard the accident’ and immediately ran out; that the child was lying thirty feet behind defendant's car and a trifle east of the middle of the road; that there were no skid marks behind defendant's car; that the street was sixty feet wide, without curbs, and with black top twenty feet wide in the center; that there was only one car parked on the west side of the street; that there were children on the east side of the street and that Halvorson said that he was watching these children and did not see the plaintiff.
From these affidavits it does not appear how far ahead of the defendant's car the child that was crossing the street was; nor does it appear whether the children on the east side of the street could testify to material facts nor whether any other witnesses as to material facts are procurable. From the affidavits it is inferable that the residence of the child's father was on the west side of the street, that the injured child was going from the home premises east when the accident occurred and that the child ahead of defendant's car was going west, although there is no direct testimony to these facts. In this situation the opportunity and right of cross-examination of the witnesses are highly important.
The summary judgment statute is sec. 270.635. The general principles governing denial of...
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