Hopkins v. Droppers

• Citation: 191 Wis. 334,210 N.W. 684
• Parties: HOPKINS v. DROPPERS ET AL. (TWO CASES).
• Decision Date: 09 November 1926
• Court: United States State Supreme Court of Wisconsin

191 Wis. 334

210 N.W. 684

HOPKINS

v.DROPPERS ET AL. (TWO CASES).

Supreme Court of Wisconsin.

Nov. 9, 1926.

Appeal from Circuit Court, Milwaukee County; Gustave G. Gehrz, Judge.

Actions by Wells Hopkins, by Michael T. Hopkins, his guardian ad litem, and by Michael T. Hopkins individually against Henry J. Droppers and Edward R. Droppers. From a judgment for plaintiffs and against defendants, each defendant appeals. Affirmed as to defendant Edward R. Droppers, and reversed as to defendant Henry J. Droppers.--[By Editorial Staff.]

These two actions, one on behalf of the infant plaintiff for his personal injuries, and the other on behalf of his father for the loss of his services, were tried together. They arise out of the infant plaintiff, Wells Hopkins, being thrown from a motorcycle being driven by the defendant Edward R. Droppers, then under 16 years of age, on August 31, 1922, on Clybourn street in Milwaukee.

The facts, with one exception, are substantially as recited at length on the former appeal on demurrer in these cases in 184 Wis. 400, 198 N. W. 738, 36 A. L. R. 1156, and will not be here again recited.

It appeared on the trial that the motorcycle had been used by Edward and to the knowledge of his father five several times between its purchase, August 9th, and the time of the accident, and testimony was given to the effect that the father, after a conversation with a friend on the subject, informed his son, Edward, the night before and again on the morning of the day of the accident, that the son was not to use the motorcycle in violation of the statute invoked forbidding its use by one under 16 unaccompanied by an adult. Edward would reach the age of 16 on December 28th, following. The following, in substance, was the special verdict:

(1) (Answered by the court). The defendant Edward drove the motorcycle unaccompanied by parent, guardian, or other adult person at the time of the accident.

(2) That the fact found under the first question was a proximate cause of the injury to the plaintiff Wells Hopkins.

(3) That Edward failed to exercise ordinary care in respect to speed.

(4) That such failure was a proximate cause of the injury.

(5) That Edward failed to exercise ordinary care in keeping a lookout ahead.

(6) That such failure was a proximate cause of the injury.

(7) That Edward failed to exercise ordinary care in the management and control of the motorcycle.

(8) That such failure was a proximate cause of the injury.

(9) That the defendant father in the exercise of ordinary care ought to have known that the son would, upon this occasion, operate or drive the motorcycle unaccompanied by an adult person.

(10) The defendant father failed to exercise ordinary care to restrain the son Edward from so operating or driving the motorcycle.

(11) That Wells Hopkins did not proximately contribute to produce the injury by any negligence on his part.

The damages for the two plaintiffs were assessed at $10,000 and $2,476.75, respectively.

After motions by the several parties orders were made by the court directing judgment in favor of the plaintiffs against the defendants for the respective damages. From the several judgments each defendant appeals.Upham, Black, Russell & Richardson, of Milwaukee (Irving A. Fish and Charles W. Reeder, both of Milwaukee, of counsel), for appellants.

William L. Tibbs, of Milwaukee, for respondents.

ESCHWEILER, J.

Under the complaint as it was before us on the former appeal (184 Wis. 400, at page 402, 198 N. W. 738, 36 A. L. R. 1156), it was alleged that at the time of the injury in question Edward was operating the motorcycle contrary to law (now St. 1925, § 85.01 [1]) by and with the knowledge and consent of his father, the defendant Henry J. Droppers, who had furnished the motorcycle.

Upon the trial several witnesses testified that the defendant father, Henry J., forbade the son to thereafter operate the motorcycle in such violation of the statute; namely, unaccompanied by parent, guardian, or other adult person. No testimony was offered by the plaintiff to contradict this, and from the framing of the special verdict and, so far as anything in the record shows, the facts of the giving of such command and that it was done in good faith were evidently assumed as being verities, which take out of the case, so far as the defendant father is concerned, an important and material element of the facts as recited in the complaint. We are therefore now squarely presented by the question as to whether or not the father should, in the exercise of any duty he owed to others, have done more or otherwise in the matter of the control of his son and the prevention of the use of the motorcycle in violation of the statute. It being unnecessary to consider the challenge by the defendant Henry J. Droppers on his appeal to the first finding in the verdict, viz., that the violation of the statute (section 85.08 [1] Stats.) was a proximate cause of the injury.

[1] On the former appeal it was declared to be the law of this case that the motorcycle, like the automobile, is not in and of itself within the class of dangerous instrumentalities such as explosives or firearms. There was no violation of any penal statute in the purchase by the defendant parent of the motorcycle or giving of the same to the...