Secard v. Rhinelander Lighting Co.
| Decision Date | 14 November 1911 |
| Citation | 133 N.W. 45,147 Wis. 614 |
| Parties | SECARD v. RHINELANDER LIGHTING CO. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Oneida County; A. H. Reid, Judge.
Action by Clarence J. Secard, as administrator of Beatrice Secard, deceased, against the Rhinelander Lighting Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Action for damages caused by the alleged taking of the intestate's life.
The pleadings presented the question of whether defendant was legally liable for the intestate's death. The evidence proved, or tended to prove, this: The defendant, in the course of its permissible operations as a public utility corporation, made several excavations in a street of the city of Rhinelander, about 5 feet deep, 20 inches in diameter at the top, and somewhat less at the bottom. The work was finished about the middle of the afternoon of the day of the accident. The intention, for a time, was to equip the excavations with poles during the afternoon and completely close them. The employé who did the excavating soon thereafter went away for an hour or so, leaving the holes wholly unguarded. Finally, it was determined not to close them up until the following day. Thereupon employés went thereto for the purpose of putting covering thereon. In the meantime the accident occurred. The particular hole was about 2 feet from the sidewalk. The street was considerably used. Children were liable to pass along, in either direction, and, attracted by the hole, approach near to and play around the brink. The earth at the surface was hard, but from a little below the ground was of a nature liable to cave as must have been observable to the persons who did the digging. He, however, in walking around the edge of the particular hole when doing the work did not start any caving, so far as observed. The deceased, a child between 9 and 10 years of age and reasonably intelligent for one of her years, and her sister, who was 11 years of age, about 5 o'clock p. m. went from their home to the vicinity of the hole. Two other girls, one 13 years of age, accompanied them. They met at the particular place. The deceased and older girl crossed the street to another hole and looked in. The sister of deceased thereupon admonished them to come away, saying, at the same time, there was danger of their falling in. They turned back, went to the particular place and deceased jumped across it. She then walked partly around the hole and stood in an attitude of preparing to jump again. The two older girls then called to her to step away from the hole as there was danger of falling in. She replied that if she did so she could get out. She was then swinging her arms, leaning forward a little and apparently preparing to jump. Suddenly she pitched forward, apparently head first, into the hole and wholly disappeared. The earth caved as she went. Some of the crust broke down. The cave-in was sufficient to bury the child out of sight, except one lower limb from the knee. When, by excavating, her form was rescued, she was found to be dead. She lay substantially on her back, with her head the lowest and bent forward onto her breast. Her trunk was some 3 feet above the bottom of the hole, while her feet were higher, one limb and foot, as stated, being above the caved-in earth, which reached to within about 2 feet of the surface. Evidence was admitted, without objection, following the allegations of the complaint respecting funeral expenses incurred to the extent of about $69.
The jury found that defendant failed to use ordinary care in respect to the hole; that the girl was free from contributory negligence; that the fault of defendant was the proximate cause of the injury, and that the pecuniary loss to the father, including funeral expense, was $2,071.90. The court refused to allow a recovery in excess of $1,500, but ordered judgment for that amount with costs, at plaintiff's election. That determination was submitted to by plaintiff and judgment was rendered accordingly.E. D. Minahan, for appellant.
Barton & Kay and Chas. W. Fricke, for respondent.
MARSHALL, J. (after stating the facts as above).
[1] It is not claimed, with confidence, that there was no jury question respecting actionable fault on the part of defendant. The subject is merely suggested and submitted. It is considered that like brief treatment will suffice here.
The evidence has been examined. There is no controversy as to what was done and left undone by defendant. Is it consistent with ordinary care, in view of the known fact that young children, yet old enough to go to school unattended and otherwise to be upon the street, are liable to be near excavations, and in view of the common knowledge that such children of little judgment are quite likely to be attracted by such things, to leave them unguarded, as in this case? It does not seem difficult to answer that.
It is conceded that it is dangerous for a child to walk around the edge of such a hole. The whole case for appellant is grounded on that theory, and that danger was so apparent that the child, upon being admonished to keep away from the hole as there was danger of her falling into it, should have known and appreciated the risk she took. That defense, under the circumstances, is a confession that appellant created a serious danger by which children, lawfully in the street, were liable to be injured. So it is considered that there were at least reasonable inferences in respondent's favor as regards whether there was actionable negligence, barring contributory negligence.
Was the child guilty of efficient contributory fault? The argument to sustain the affirmative is based wholly on the theory that she was admonished to step back from the hole and, in face of that, remained and did the thing which led to her death--fell in as she was admonished might be the case, and the cave-in followed.
The chief support of such contention is the claim that the child fell into the excavation before there was breaking down of the surface, and that the disturbance by her person in the hole caused the cave-in. A very ingenious argument on that appears in counsel's brief, but it is far from conclusive. The fact that no part of the child's body was at the bottom of the hole, or very near to it, strongly rebuts the theory that she fell in...
To continue reading
Request your trial
-
Littlejohn v. Midland Valley R. Co.
...struck by a moving elevator. It was held that the question of defendant's negligence was for the jury. ¶14 In Secard v. Rhinelander Lighting Co., 147 Wis. 614, 133 N.W. 45, in an action against the lighting company for the death of a child, who fell into an unguarded excavation in a street,......
-
Fiel v. City of Racine
...of the pile upon private property and while upon such part was injured because of the instability of the pile. In Secard v. Rhinelander L. Co., 147 Wis. 614, 133 N. W. 45, a child was injured by falling into and while playing about a post hole in the street dug and left unguarded by the def......
-
Martha M. Bucklin v. John Narkwich
... ... 171, 40 S.W.2d 665; ... Wallace v. City of Farmington, 231 Ill ... 232, 83 N.E. 180; Secard v. Rhinelander Lighting ... Co., 147 Wis. 614, 133 N.W. 45; Powell Music ... Co. v. Storage [108 ... ...
-
Van Gilder v. Gugel
...or names instead of being brought in the name of the personal representative of such deceased person.” In Secard v. Rhinelander Lighting Company, 147 Wis. 614, 622, 133 N.W. 45, 47, which was an action brought by an administrator to recover damages for the benefit of a father for the death ......