Lisowski v. Milwaukee Auto. Mut. Ins. Co.

• Decision Date: 30 October 1962
• Citation: 17 Wis.2d 499,117 N.W.2d 666
• Parties: James LISOWSKI, an Infant, by Marcel Lisowski, His Guardian, and Marcel Lisowski, Plaintiffs and Respondents, v. MILWAUKEE AUTOMOBILE MUTUAL INSURANCE COMPANY, a corporation, and Gail Flury, Defendants and Appellants.
• Court: Wisconsin Supreme Court

Page 666

117 N.W.2d 666

17 Wis.2d 499

James LISOWSKI, an Infant, by Marcel Lisowski, His Guardian and Marcel Lisowski, Plaintiffs and Respondents, v. MILWAUKEE AUTOMOBILE MUTUAL INSURANCE COMPANY, a corporation, and Gail Flury, Defendants and Appellants.

Supreme Court of Wisconsin.

Oct. 30, 1962.

Rehearing Denied Jan. 10, 1963.

Hale, Skemp, Hanson, Schnurrer & Skemp, La Crosse, for appellants.

Fugina, Kostner & Ward, Arcadia, for respondents.

HALLOWS, Justice.

Several issues arise concerning the instructions given to the jury which the defendants argue were prejudicial 'plaintiff instructions.' The trial court instructed on a driver's duty when children are present, Form 1045 of the Wisconsin J. I.--Civil. Giving of this instruction was error. This is not a case in which the driver had actual notice that children were playing in the area, as in Hartzheim v. Smith (1941), 238 Wis. 55, 298 N.W. 196; Hanes v. Hermsen (1931), 205 Wis. 16, 236 N.W. 646; and Ruka v. Zierer (1928), 195 Wis. 285, 218 N.W. 358. Nor were there any special facts which would make the presence of children likely, as when a motorist drives through a school area or near a park or playground. The duty of a motor vehicle driver approaching a place where children are playing or gathered is exhaustively annotated in 30 A.L.R.2d 1. The defendant Flury had no duty or reason to anticipate a child would walk or run in mid block into the main business street of the town unless this court is to hold a driver of an automobile in a business district of a town is chargeable as a matter of law with notice that children are likely to come into his path. We will not so hold. Children of tender years are not likely to be unguarded or unaccompanied by adults in a business district and certainly ought not to be. Parents have a duty to watch and protect their children against traffic hazards when they accompany them in business districts of cities. Unless an autoist knows or some circumstances exist which warn or from which the motorist should know in advance that children are likely to be in the business district, an instruction such as was given in this case has no foundation. This view is supported by Schneider v. Neuman (1957), 2 Wis.2d 160, 85 N.W.2d 813; and Hanson v. Weber (1940), 234 Wis. 593, 291 N.W. 800 (cases of children running into a street in the business district). Merely being in a business district of a town does not constitute notice to a driver of an auto of the likelihood of children coming into the street in mid block.

A judgment will not be reversed on the ground of misdirection of a jury unless this court is of the opinion after an examination of the entire record that the error has affected the substantial right of the party seeking the reversal. Sec. 274.37, Stats. This is a test of probability, not possibility, requiring the entire evidence to show that had not the error occurred the result would probably have been different. Carson v. Pape (1961), 51 Wis.2d 300, 112 N.W.2d 693; Holtz v. Fogarty (1955), 270 Wis. 647, 72 N.W.2d 411; Widness v. Central States Fire Ins. Co. (1951), 259 Wis. 159, 47 N.W.2d 879; Schwartz v. Eitel (7th Cir. 1943), 132 F.2d 760. It does not appear from the record that had the instruction not been given a different result would or could have followed.

The defendant argues that without this instruction Flury was free from negligent lookout as a matter of law, urging this court to take judicial notice of the smallness in height of the 5-year-old child, that he came from the right of the driver, and the traffic conditions required Flury to keep a vigilant lookout straight ahead. However, Flury testified on adverse examination he never saw the child until it was about to be hit in front of the car. At the trial, he varied this to some extent. Main street of Arcadia is 52 feet wide with the centerline marked. Flury testified he was driving in the middle of his lane. The left side of his car was then approximately 10 feet north of the centerline and the right side 10 feet from the north curb. Allowing six feet for cars parked along the curb, the right side of Flury's car was approximately four feet from these parked cars, and the child would have had to travel seven feet from the edge of the parked cars to the middle front of Flury's car. The shoe of the child which was found 16 1/2 feet from the curb and which was testified marked the point of accident would sustain a reasonable inference the child was struck approximately 10 feet out from the parked cars and in the open street. The child's father, an eye witness to the accident, stated the child walked out into the street. Flury claims he ran. This must be taken together with Flury's testimony that he did not see the child until he struck him. On the facts, the jury could not have found otherwise than that Flury was negligent as to lookout. We cannot hold a driver in traffic in a business district fulfills his duty of lookout by only looking ahead. Schneider v. Neuman, supra. How far under such circumstances the driver must keep a lookout to the side is a question of fact but is not applicable here. If Flury had kept a proper lookout he would have seen the child sooner than he did with only a slight deviation from looking straight ahead. Consequently, the jury's verdict on lookout would be the same whether the instruction had been given or not. Since a child 5 years old is incapable of negligence (Sec. 328.44, Stats.), this is no question of the effect of the erroneous instruction on apportionment of negligence.

In the instructions, the court included the following:

'It appears that the defendant, Gail Flury, is crippled because of the effects of polio. The extent or degree of his disability is for you to determine from the evidence. A person who is physically handicapped has the same right to use as others the streets and sidewalks and he is governed by the same standard of care for his own safety and safety of others as that which governs normal persons, that is, ordinary care. But in order to measure up to that standard of care, he must more vigilantly exercise caution through other senses and other means in order to compensate for his physical handicap. Due consideration should be given to defendant Gail Flury's physical handicap and to the fact that it was his duty to exercise a greater degree of care, proportioned to the degree of his physical impairment, in looking for approaching pedestrians and in operating his motor vehicle than would have been required had he been a physically normal person.'

This was adapted by the trial court from suggested form 1050, Wisconsin J. I.--Civil which in form applied to defective hearing or eyesight as affecting lookout. The instruction as given covered a physical handicap and included the element of management and control as well as lookout. An instruction on the duty of handicapped persons need not be restricted to sensory handicap. Before instruction on the duty of a handicapped person should be given, there must be a foundation in the evidence for a jury finding that there is some element of negligence to which the handicap relates. Without such a requirement, it would be proper to give such an instruction in almost every case. The mere fact a person is physically handicapped does not justify giving such an instruction. The question of management and control...