Nechodomu v. Lindstrom
| Decision Date | 11 September 1956 |
| Citation | 78 N.W.2d 417,273 Wis. 313 |
| Parties | , 62 A.L.R.2d 884 Joseph NECHODOMU, Jr., a minor, by John R. Cashman, his guardian ad litem, et al., Respondents. v. Wilbert LINDSTROM, Jr., et al., Appellants. |
| Court | Wisconsin Supreme Court |
Frank A. Murphy, Manitowoc, for plaintiffs.
Dudley O. Emmert, Manitowoc, for defendants Lambert and Zinda.
Ben E. Salinsky, Sheboygan, for defendants Lindstrom, Jr. and Abts.
We are confronted on the motion for rehearing filed by the defendants Lambert and Zinda with the issue of whether our comparative negligence statute, sec. 331.045, Stats., is applicable to the facts of the instant case so as to require a reduction in the amount of damages awarded to the plaintiffs by the judgment appealed from.
While certain of the questions of the special verdict and the jury's answers thereto are set forth in our original opinion, we deem it essential to set forth Questions 10 and 11 of such verdict together with the jury's answers thereto:
"Question 10. Was Joseph Nechodomu, Jr., negligent for his own safety?
Answer: Yes.
"Question 11. If you answer Question 10 Yes, then answer this question: Was such negligence on the part of Joseph Nechodomu, Jr., a cause of his injury?
Answer: Yes."
By its answer to Question 14 (the comparative negligence question), the jury attributed 18 per cent of the total negligence to the plaintiff, Joseph Nechodomu, Jr.
Thus, although the jury, by its answer to Question 7, found that Joseph because of his age or tender youth, failed to realize the risk involved in playing in close proximity to the mud mixer and in placing his hand in such machine, it nevertheless found his guilty of contributory negligence. Such findings are not necessarily inconsistent. The jury could well have concluded from the evidence in the case that this nine year old boy, even though he did not realize the risk involved in placing his hand inside the mixer, nevertheless failed to exercise the degree of care which is ordinarily exercised by children of his age, experience, and intelligence.
We deem that our decision in Britten v. City of Eau Claire, 1952, 260 Wis. 382, 391, 51 N.W.2d 30, 34, is directly in point on the question of whether the jury's answers to Questions 10, 11, and 14 may be permitted to stand in view of its answers to Question 7. We quote from Mr. Justice Gehl's opinion in the Britten case as follows:
While it is true that a child of tender years may not be charged with knowledge of statutory rules of conduct, as were considered in Van Lydergraf v. Scholz, supra, and similar precepts, still the jury was warranted in determining, even in the absence of warning and lacking familiarity with a machine of this charcter, that in exposing himself to the danger of palying about this equipment he did not exercise the degree of care which is ordinarily exercised by children of his...
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