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term for which he was hired, did not tion of the school month, the schoollose his right to recover for the un- teacher could not recover for the peexpired portion of the term by failing riod taught by him, for the reason, to make reports for such unexpired inter alia, that he failed to make out portion, as naturally there was noth- the monthly report required by stating to report for such period, as the ute at the expiration of the month. school was not in session. Rudy v. The court in Rudy v. School Dist. School Dist. (1888) 30 Mo. App. 113. (Mo.) supra, in distinguishing be

And see, also, Scott v. School Dist. tween its decision and that of Hall v. (1874) 46 Vt. 452, holding that al- School Dist. says: “That case is on though by statute teachers were re- its facts distinguished from this, in quired to submit a register at the that, there the contract was termiclose of the school term, if the school nated by a casualty of such a nature committee, by his own conduct, and that its performance became imposwithout the fault of the teacher, pre- sible; while here it was terminated vented the close of the term being by the defendant acting through its reached by her, the failure to submit directors. The defendant could not such a register would not prevent the render the making of these monthly recovery of her wages.

reports nugatory and absurd, and then But, in Hall v. School Dist. (1887) insist that the plaintiff should not re24 Mo. App. 213, where a schoolhouse cover his salary because he had not was burned down before the expira- made them.”

R. P. D.

R. T. BENTSON, Admr., etc., of Victor Bentson, Deceased, Appt.,

V.
BEN C. BROWN, Respt.

Wisconsin Supreme Court - April 7, 1925,

(186 Wis. 629, 203 N. W. 380.)

Automobiles, § 44 - operation in violation of statute - gross negligence.

1. Although one who causes injury to another in operating an automobile in violation of statute is negligent per se, he is not necessarily guilty of gross negligence which will make unavailing the defense of contributory negligence.

[See note on this question beginning on page 1424.] Pleading, 8 329 — gross negligence — Pleading, $ 109 — negligence resufficiency.

covery for gross negligence, 2. Gross negligence is not charged 4. There can be no recovery on the in a complaint to recover damages for ground of gross negligence where the wrongful death by an allegation that complaint charges only ordinary negdefendant's acts were reckless, negli- ligence or want of ordinary care, and gent, and unlawful.

the cause is tried on that theory. Negligence, 8 8 — gross — what is. [See 20 R. C. L. 23, 24.]

3. To constitute gross negligence, Automobiles, $ 46 — highway crossing there must be either a wilful intent to - duty of pedestrian to observe auinjure, or that reckless and wanton tomobile. disregard of the rights and safety of 5. Pedestrians crossing streets much another or of his property, and that traveled by automobiles are not rewillingness to inflict injury, which the lieved from the duty of making obserlaw deems equivalent to an intent to vations or taking care for their own injure.

safety. [See 20 R. C. L. 23; 3 R. C. L. Supp. [See 2 R. C. L. 1186; 2 R. C. L. Supp. 1019; 4 R. C. L. Supp. 1325.]

725.]

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Trial, $ 180 question for jury - Appeal, $ 668 — refusal to disturb ver

negligence in passing in front of dict for defendant. automobile.

9. The rule that the appellate court 6. The jury must determine whether will not disturb a verdict supported or 'not a twelve-year-old boy racing by credible evidence, which has been across a street which he knows to be sustained by the trial court, unless it much used by automobiles failed to is clearly wrong, applies in favor of look or attempted to pass safely in defendant as well as of plaintiff. front of an approaching car, which Appeal, § 853 instruction as to mistruck and killed him.

nority verdict error. [See 14 A.L.R. 1192.]

10. Under a statute providing that Negligence, & 130 — emergency

ef

a verdict, finding, or answer agreed to

by five sixths of the jurors shall be fect of negligently creating.

the verdict, finding, or answer of the 7. When one's contributory negli- jury, an instruction that “the result of gence has led him into an emergency this law is that if any ten or more of he is not entitled to rely on the rule your number agree, you may answer that, when one is required to act sud- any question submitted to you and redenly in the face of imminent danger, turn a verdict accordingly, . . . but he is not required to act with the same

until ten or more of your number are care as if he had full opportunity to

agreed upon the answer that should exercise his reasoning faculties.

be made to each question submitted, [See 20 R. C. L. 135.)

you cannot answer the question.” is

reversible error. New trial, § 26 when verdict not Appeal, § 818 — erroneous instruction disturbed.

nonprejudicial error. 8. If a verdict is one that reasonable 11. Where the jury indicates that men might find, the court should not the verdict was that of each of them, disturb the decision of fact which the it will be presumed that it was unanlaw has confided to the jury.

imous, and, therefore, an erroneous [See 2 R. C. L. 193, 194; 1 R. C. L. instruction permitting a verdict by Supp. 432; 4 R. C. L. Supp. 90; 5 R. less than the whole under erroneous C. L. Supp. 79.]

circumstances is nonprejudicial. (Crownhart, J., dissents.)

APPEAL by plaintiff from a judgment of the Circuit Court for Vernon County (Smalley, J.) in favor of defendant in an action brought to recover damages for the death of plaintiff's grandson, alleged to have been caused by defendant's negligence. Affirmed.

The facts are stated in the opinion of the court.

Messrs. Graves & Gulbrandsen for v. Burck, 160 Wis. 440, L.R.A.1915D, appellant.

968, 152 N. W. 190; Pinoza v. Northern Messrs. C. J. Smith and Lines, Chair Co. 152 Wis. 473, 140 N. W. 84; Spooner, & Quarles, for respondent: Brown v. Chicago & N. W. R. Co. 109

There was no gross negligence as a Wis. 384, 85 N. W. 271, 9 Am. Neg. matter of law.

Rep. 403. Jorgenson v. Chicago & N. W. R. Co. The verdict cannot be attacked. 153 Wis. 108, 140 N. W. 1088; Willard Dick v. Heisler, 184 Wis. 77, 198 N. v. Chicago & N. W. R. Co. 150 Wis. W. 734; Kosak v. Boyce, 185 Wis. 513. 234, 136 N. W. 646; Wilson v. Chip- 201 N. W. 757. pewa Valley Electric R. Co. 120 Wis. 636, 66 L.R.A. 912, 98 N. W. 536; Mc- Jones, J., delivered the opinion of Clellan v. Chippewa Valley Electric the court: R. Co. 110 Wis. 326, 85 N. W. 1018; This is an action for damages for Turtenwald v. Wisconsin Lakes Ice &

the loss of life of Victor, who was Cartage Co. 121 Wis. 65, 98 N. W. 948;

twelve and one-half years old and Haverlund v. Chicago, St. P. M. & 0. R. Co. 143 Wis. 415, 128 N. W. 273;

the grandson of the plaintiff. The Riggles v. Priest, 163 Wis. 199, 157 N.

defendant was driving southwest on W. 755; Clemens v. State, 176 Wis. 289,

state trunk highway No. 27, en 21 A.L.R. 1490, 185 N. W. 209; Ludke route to his home in Viroqua, and

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v. BROWN

1419 (186 Wis. 629, 203 Ņ. W. 380.) was approaching a turn on the road schoolyard, and who witnessed the in front of the Round Prairie schools accident, stated that they heard house. According to the testimony someone call out that a car was comof the defendant and the person rid- ing, though they did not know who ing with him, the defendant was had done so; that at the time this driving at the rate of about 25 miles statement was made the deceased an hour, but as he approached the was already at the edge of the road. turn he slowed down to about 20 Most of the witnesses state that the miles an hour. The schoolhouse in car was going "fast,” or “as fast as question faces south down the road some of them go." The jury found on which the defendant was about that the defendant had violated certo turn and at this particular time, tain highway rules which constitutabout noon on the 7th day of No- ed negligence, and that this neglivember, 1923, the children were just gence was the proximate cause of emerging from the schoolhouse. the accident. They also found that The deceased and three other boys the deceased was guilty of contribucame out of the schoolhouse and tory negligence, and on this verdict started to run to their ball field the court entered judgment for the which was across the road in a defendant. southeasterly direction from the There is discussion in both briefs schoolhouse. The defendant saw relating to the negligence of the dethe boys coming toward him when fendant. In the argument of counthey were some distance away, but sel for the plaintiff, especial stress as he proceeded to turn to the south is laid on the fact that Victor was they left his line of vision, which dragged 65 feet, and it is claimed was slightly obstructed by the pas- that the car must have been driven senger who was seated upon his faster than 20 miles per hour when right. The defendant testified that the accident occurred. Much reliance while making the turn he was is placed on the fact that the defendwatching the road, and when the

ant failed to pass to the right of the turn was almost completed sudden- center of the intersection, and on ly perceived the deceased in front the claim that he failed to keep a of the moving car, and that before proper lookout and violated the stathe could more than put on the brake ute regulating the speed of a vehicle the car struck the boy, and he was passing school grounds. The jury dead when the car stopped 65 feet found that he failed to pass to the further on.

right of the center of the intersecThe testimony of the boys who ac- tion; that he failed to properly recompanied the deceased was to the duce the speed; that he failed to use effect that one of them said that he ordinary care in keeping a proper would beat the deceased to the ball lookout, and that he failed to sound field, and that they all started run- the horn as he approached the interning; that as they started across section. the road some one of them shouted, There was undoubtedly sufficient “There comes a car,” though the evidence to support these several nearest boy to the deceased swore findings, and it becomes unnecessary that he did not hear this statement; to state or discuss in detail the evithat the companions of the deceased dence which tended to show the destopped at once by throwing them- fendant's negligence. The claim is selves on the ground or catching the made, although not much argued in guy wire of a near-by telephone the brief, that gross negligence was pole, but that the deceased, who was proven, and that for that reason ahead, continued across the macad- contributory negligence was no deamized road and was struck by the fense. But there are several anapproaching car while in the middle swers to this claim. There was no of the roadway. Several girls who allegation of gross negligence in the were sitting under a tree in the complaint, and the case was tried on

gence-suff

the theory of ordinary negligence. L.R.A. 912, 98 N. W. 536; McClellan This appears not only from the v. Chippewa Valley Electric R. Co. pleadings, but from the special ver- 110 Wis. 326, 85 N. W. 1018. dict, and from the requests made by Moreover, it should be said that, the plaintiff as to the form of the although it is settled that the despecial verdict and for instruc- fendant violated the statutes in sevtions. The only words in the com- eral respects, his emotion and con

plaint which could duct after the accident were quite Pleadinggross neglla be construed to hint inconsistent with any theory of wil

toward gross negli- fulness or intentional wrongdoing. cieny.

gence were “reck- It is contended by the counsel for less, negligent, and unlawful,” which the plaintiff that the operation of were used to characterize the con- the automobile by the defendant was duct of the defendant. There is no in such flagrant disregard of law as language charging that the acts to make the automobile of the decomplained of were wilful or wanton fendant a dangerous machine. The or intentional. It cannot be said inference sought to be drawn is that there are any averments in the this: That, when an automobile is pleadings showing such wilful or in- driven carelessly and in violation of tentional disregard of the rights or a statute or statutes, it is to be safety of others as is necessary to classed as a dangerous instrumenconstitute gross negligence. "It is tality; that, as in the case of dynathe settled law of this state that in mite and firearms, such use in viorder to constitute gross negligence olation of a statute is to be regard

there must be either ed as gross negligence, depriving Negligence

a wilful intent to ingros-what ig.

the wrongdoer of the defense of conjure, or that reck- tributory negligence, under the rule less and wanton disregard of the declared in Pizzo v. Wiemann, 149 rights and safety of another or of Wis. 235, 38 L.R.A. (N.S.) 678, 134 his property, and that willingness to N. W. 899, Ann. Cas. 1913C, 803, 3 inflict injury, which the law deems N. C. C. A. 149. But it is too well equivalent to an intent to injure.” settled in this state to call for disWillard v. Chicago & N. W. R. Co. cussion that automobiles are not to 150 Wis. 234, 136 N. W. 646; Gould be so classed. Hopkins v. Droppers, v. Merrill R. & Lighting Co. 139 184 Wis. 400, 36 A.L.R. 1156, 198 Wis. 433, 121 N. W. 161; Lemma v. N. W. 738, 23 N. C. C. A. 993; CrosSearle, 153 Wis. 24, 140 N. W. 65. sett v. Goelzer, 177 Wis. 455, 188

It has been several times held by N. W. 627; Steffen v. McNaughton, this court that, where the complaint 142 Wis. 49, 26 L.R.A.(N.S.) 382, charges only ordinary negligence or 124 N. W. 1016, 19 Ann. Cas. 1227.

want of ordinary It is also well settled that, when Pleading negligence-recare, and the case is

one operates an automobile in violacovery for gross tried on that theory, tion of a statute causing injury to negligence.

there can be no re- another, the act is negligence per covery on the ground of gross negli- se, but not necessagence; that there is an essential dif

rily gross

negli- Automoblles

operation in vioference between the two causes of gence, that unless Intion of statute action, and that the defendant is en

-gros neglt

gross negligence is titled to know the nature of the established, the decause of action relied on. Lemma v. fense of contributory negligence is Searle, supra; Astin v. Chicago, M. available. Hopkins v. Droppers, su& St. P. R. Co. 143 Wis. 477, 31 pra; Ludke v. Burck, 160 Wis. 440, L.R.A.(N.S.) 158, 128 N. W. 265; L.R.A.1915D, 968, 152 N. W. 190. Turtenwald v. Wisconsin Lakes Ice We all know of the shocking loss & Cartage Co. 121 Wis. 65, 98 N. W. of life which is daily caused by the 948; Wilson v. Chippewa Valley use of motor vehicles by careless Electric R. Co. 120 Wis. 636, 66 and incompetent drivers. We also

Sence.

a

to observe automo

.

automobile.

(186 Wi8. 629, 203 N. W. 380.) know how greatly such vehicles con- nary street traffic is going on. tribute to human comfort and hu- Klokow v. Harbaugh, 166 Wis. 262, man welfare when they are properly 164 N. W. 999. The law only remanaged. Of course, they may be quires that the pedestrian shall use so managed as to subject the oper- ordinary care, and he 'may presume ator to the consequences of his gross that others will also exercise a propnegligence. But considering the nu- er degree of care. But there is no merous provisions in the statutes rule of law that regulating the use of automobiles, those crossing

-highway cross

ing-duty of peand the manner in which even care- road much traveled destrian ful persons use them, it would be a

by automobiles need bile. harsh and unpractical rule that make no observashould attempt to impose on the tions or take no care for their own driver or owner violating one of the safety. provisions, the heavy burdens con- Under the testimony, the jury sequent to gross negligence. In the may have believed, and had the right present case several provisions of to believe, either that Victor did not the statutes were violated, but that look, or that he saw the approaching is not unusual, since, in most of the car, and continued his race hoping automobile collision cases which to pass it safely. come before us, several violations In either case it was

Trial-question

for Jury-negliare alleged in the complaint.

for the jury to say sence in pass

ing in front of In the oral argument and in the whether he was in brief, counsel for the plaintiff have the exercise of ordiargued with all the earnestness and

nary care, What is ordinary care ability which the tragic occurrence depends on the attending circumwould naturally inspire, that the stances. In this case the jury finding of the jury as to contribu- were told that it meant such tory negligence should have been set care as ordinarily prudent and careaside. It is argued that Victor did ful children, of the same age, intelnot see the approaching car. There ligence, and experience as Victor is no direct evidence that he did, Bentson had on that day, ordinarily but three of the boys who were run- would exercise under the same or ning with him saw it and avoided similar circumstances, and that it any collisions, as above stated. The

was his duty to exercise that amount boy Thorkelson, as they were run- of care to avoid injury. They were ning, said to Victor, “I. will beat also told that, on the question of you,” The same boy shouted "There contributory negligence, the burden comes a car.” This was heard by of proof was on the defendant to two of the boys. Three girls who satisfy them to a reasonable cerwere sitting in the school grounds tainty by the preponderance of the under a tree also heard this excla

evidence. mation and saw the car approach

Counsel for the plaintiff argue ing. Victor was a bright, active boy that Victor was confronted by such of a little more than usual height, who had attended the school for four

an emergency that he could not act

with deliberation, and therefore years, and knew that the highway

could not be held responsible for not was a much traveled road, and of course knew the danger incident to choosing the best means of escape

from danger. It is undoubtedly crossing it without looking for passing cars. It is true, as claimed by true that, when one is required to the plaintiff's counsel, that the “look act suddenly and in the face of imand listen” doctrine which is applied minent danger, he is not required to to persons approaching a railway act with the same care as if he had track is not extended to persons who full opportunity to exercise his reaare using a city street in which ordi- soning faculties. But this rule has

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