Stoffle v. Hilker

• Decision Date: 09 March 1926
• Citation: 189 Wis. 414,207 N.W. 685
• Parties: STOFFLE v. HILKER ET AL.
• Court: Wisconsin Supreme Court

189 Wis. 414

207 N.W. 685

STOFFLE

v.HILKER ET AL.

Supreme Court of Wisconsin.

March 9, 1926.

Appeal from Circuit Court, Racine County; E. B. Belden, Judge.

Action by Katherine Stoffle, by her guardian ad litem, Joseph Stoffle, against Fred C. Hilker and another. From a judgment for defendants, plaintiff appeals. Reversed, with directions.

See, also, 207 N. W. 687.

Personal injury. This is an appeal from a judgment dismissing plaintiff's action and for costs to the defendants. There was a jury trial and a special verdict favorable to the plaintiff. The answers in the verdict finding the defendants guilty of negligence were set aside by the circuit court, and answers substituted holding the defendants free from negligence. From the judgment the plaintiff appeals.John T. Booz, of Chicago, Ill., and McGovern, Hannan, Devos & Reiss, of Milwaukee, for appellant.

Thompson, Harvey & Monk and John B. Simmons, all of Racine, for respondents.

CROWNHART, J.

Briefly, the evidence in this case fairly shows the following situation: On September 30, 1922, the defendant Fred C. Hilker was riding in his Mitchell seven-passenger car, going east on Irving Park boulevard in the city of Chicago, across a bridge over the Chicago river, on a bright, clear day, at about 9:45 a. m. The car was driven by his son, the defendant James Hilker, who was then 17 years of age. In the front seat with James was a younger brother, sitting in the middle, and a young man, about 17 years of age, sitting on the right-hand side. In the middle seats, back of the front seat, sat two girls, each about 15 years of age, and in the back seat with the defendant Fred Hilker was his son Harold, aged 13.

The boulevard had sidewalks on each side, and was considerably wider than the bridge, but narrowed to the width of the bridge as it approached the bridge. The bridge was 54.30 feet wide from outside rail to outside rail. On the north side was a walk about 6 inches higher than the floor of the bridge, and about 8.95 feet wide. To the south of this walk was a driveway 10.87 feet wide, for west-bound traffic; then two street car rails, 4.71 feet apart; then a space between street car rails of 5.50 feet; another set of street car rails 4.71 feet apart; then a driveway for east-bound traffic, 10.48 feet wide, and then the south walk for pedestrians, about 9.05 feet wide. The bridge was 184.8 feet long, and formed an oval or bow, being 2 feet higher in the center than at either end.

Six little girls, ranging from 3 to 9 years' went onto the bridge from the north walk at the west end, and along the north walk on the bridge until they came within 8 or 10 feet of the center. There they started to go across from the north side of the bridge to the south side. As they started to step down from the walk to the bridge floor, they noticed a Ford coupé coming from the east, and stepped back onto the walk and waited for it to pass by. As soon as it passed them, they started to go across, either at a fast walk or running. Four children got safely across onto the south walk, and stood looking down upon the river. Two children were behind; one, Ruth Larson, 7 years old, was leading the infant plaintiff, about 4 years old, by the hand. As these two reached the south traffic way over the bridge, they noticed the defendant's automobile coming toward them. The older girl drew back to escape, while the younger child broke away and went forward. The defendant's car struck the younger girl, threw her down, rolled her over and over, passed over her body and stopped so that the body of the child was partially between the hind wheels of the car and partially back of the axle. The evidence differs as to just what part of the car hit the child. She was picked up and taken to the hospital. She had a badly smashed foot and a fractured skull, the fracture line extending from the temple clear around the head, with a depressed triangular fracture of the skull near the left temple.

The plaintiff claimed that the defendant driver was guilty of negligence, in that he was driving his car at more than 15 miles an hour, and in that he failed to keep a proper lookout. The jury found...