no application where one's contribu

Negligenceemergency-effect of negligently creating.

tory negligence has led him into the

emergency.

Lier

man v. Chicago, M. & St. P. R. Co. 82 Wis. 286, 33 Am. St. Rep. 37, 52 N. W. 91; Haetsch v. Chicago & N. W. R. Co. 87 Wis. 304, 58 N. W. 393; Dummer v. Milwaukee Electric R. & Light Co. 108 Wis. 589, 84 N. W. 853. In this case there was a fair trial. The physical facts relating to the road and the school ground, the negligence of the defendant, the manner in which Victor and the other boys approached the highway, the opportunity for seeing the approaching car, the warning given and heard by others, the avoidance of collision. by the other boys, were all shown with but little conflict in the evidence. The jury found that want of ordinary care on the part of Victor proximately contributed to produce his death, and the verdict was approved by the trial court. Can this court set that verdict aside without departing from well-established rules?

It is the rule declared by the United States Supreme Court, and followed by many decisions of this court, that "where there is uncertainty as to the existence of either negligence or contributory negligence, the question is not one of law, but of fact, and to be settled by a jury; and this, whether the uncertainty arises from a conflict in the testimony, or because, the facts being undisputed, fair-minded men will honestly draw different conclusions from them." Richmond & D. R. Co. v. Powers, 149 U. S. 43, 37 L. ed. 642, 13 Sup. Ct. Rep. 748, 7 Am. Neg. Cas. 369.

So, it has often been held by this court that if the verdict arrived at is one that reasonable men might find, it is not the duty of the court to disturb the decision of fact which the law has confided to the juries, not to the judges; and that if there is any credible evi

New trialwhen verdict not disturbed.

Appeal-refusal

ant.

dence to support the verdict, it cannot be disturbed and that the judgment of the trial court sustaining the to disturb ververdict should not diet for defendbe set aside unless clearly wrong. In negligence cases these rules are more often invoked by plaintiffs than by defendants, but they have become an essential part of our jury system and they apply to both alike.

The distressing circumstances under which this bright boy met his death appeal very strongly to our sympathy, but we do not see how we can set aside the verdict of the jury, without disregarding well-settled rules of law.

Exception is taken to the following instruction: "As you have heretofore been told, it is now the law1 that a verdict may be returned or an answer made to any question submitted, in civil jury cases, where five sixths of the jury agree thereto; and the result of this law is that if any ten or more of your number agree, you may answer any question submitted to you and return a verdict accordingly, in a civil jury case such as the one we are now trying; but until ten or more of your number are agreed upon the answer that should be made to each question submitted, you cannot answer the question; and this instruction applies to each of the questions submitted to you in this verdict."

Under the decision in the case of Dick v. Heisler, 184 Wis. 77, 198 N. W. 734, this instruction was er- as to minorroneous. When the ity verdictjury returned the

-instruction

error.

verdict it was read to them, and they were asked by the court if it was their verdict and the verdict of each of them, and they indicated that it was. No poll of the jury was re

1 The statute is as follows:

Section 2857. "A verdict, finding, or answer agreed to by five sixths of the jurors shall be the verdict, finding, or answer of the jury."

8, 1925):

At the place of the accident there was a highway running east and west. Intersecting this highway, but not crossing it, was a highway running north and south. The defendant was driving west on the east and west highway, and turned to go south on the north and south highway. Connecting the two highways was a curved highway cutting the corner between them. At the north of the north and south highway were school grounds which extended easterly along the east and west highway 4 or 5 rods. Before he reached the school grounds, the defendant noticed some twenty school children coming out of the schoolhouse toward the highway. He was driving at the rate of 25 miles an hour, according to his own testimony, and slackened his speed around the curve to about 20 miles an hour. There was no obstruction to his vision, and he could see plainly at all times the road to the front of him, and to the right as he was making the turn, and he saw the children all the time until they got into the road. As he rounded the turn and just as he crossed the line of the east and west highway, he struck the deceased boy with the front of his car, dragging him some 65 feet, and resulting in the instant death of the boy.

The jury found that the defendant violated subdivision (3), § 85.01 of the Statutes, in that he did not keep to the right of the center of the highway intersections in making the turn, and that he violated subdivision (2), § 85.08, in that he failed to reduce the speed of his automobile to such a rate as to tend to avoid danger of accidents. The jury further found that defendant failed

to exercise ordinary care by failing to keep a proper lookout as he approached the place of the accident, and that the defendant failed to sound his horn as he approached the intersections of the highways. The jury found that each of these violations of the statutes and acts of neg

ligence was a proximate cause of the

death of the boy.

Besides the findings of the jury, it stands admitted in the evidence that the plaintiff passed the school grounds at a rate of speed of at least 20 miles an hour, which is also a violation of subdivision (2), § 85.08, which limits such speed to 12 miles an hour. The sections cited are penal statutes.

The deceased was a boy twelve and one half years old, who, in company with other boys, left the schoolhouse to cross the highway to playgrounds on the opposite side. The boys were racing, with the deceased slightly in the lead. His companions saw the car and were able to stop in time to escape injury, but the deceased evidently did not see the car and was instantly killed.

Section 2405m, Stat., provides, among other things, that in any action brought to this court by appeal if it shall appear probable that justice has for any reason miscarried, the Supreme Court may in its discretion, reverse the judgment appealed from, remit the case to the trial court for a new trial, and direct proper amendments to the pleadings. I think justice has miscarried in this case, and that the case should be reversed for a new trial. To my mind the defendant was guilty of gross negligence. The plaintiff failed to allege gross negligence, and I think for that reason, and that reason only, he is denied relief. I would not think that mere excess speed would ordinarily be gross negligence; or mere failure to keep a lookout; or failure to keep to the right of the intersection of the highways; or failure to observe the statutory requirement to limit the speed to 12 miles an hour while

going by school grounds; or failure to blow the horn when required. But where all these acts of negligence are combined under circumstances that are wholly inexcusable, I think it makes a clear case of gross negligence. I think I may also safely say that where a person drives by school grounds and observes children running into the highway from the grounds, in plenty of time to reduce his speed to the lawful requirements, and, by reason of such failure to reduce his speed, kills a child, that it presents a question of gross negligence for the consideration of the jury.

This court has frequently defined gross negligence as: "Such a de"Such a degree of rashness or wantonness as evinces a total want of care for the safety" of others, Ryan v. La Crosse City R. Co. 108 Wis. 122, 131, 83 N. W. 773; "wanton or

reckless disregard of life," Raasch v. Milwaukee Electric R. & Light Co. 151 Wis. 170, 171, 138 N. W. 608; "reckless and wanton disregard of the rights and safety of another," Willard v. Chicago & N. W. R. Co. 150 Wis. 234, 136 N. W. 646; "to constitute gross negligence the act or omission causing the injury must itself have been wanton or wilful," Kuchler v. Milwaukee Electric R. & Light Co. 157 Wis. 107, 109, 146 N. W. 1134, Ann. Cas. 1916A, 891.

The act of the defendant in driving at an unlawful rate of speed by school grounds was intentional, wilful, utterly reckless, and in disregard of human life.

Thus, if this remedial statute (§ 2405m) is ever to be availed of in the interest of justice, I think this instant case calls loudly for action under it.

The question under annotation is to be distinguished from the question as to the applicability of the doctrine of last clear chance, one aspect of which, in connection with automobile accidents, is touched upon in the annotation in 14 A.L.R. 1176, 1191. Although that doctrine, when applicable, has the effect of precluding the defense of contributory negligence, it is not dependent upon a characterization of the defendant's conduct as wanton, or wilful, or as gross negligence.

In the reported case (BENTSON V. BROWN, ante, 1417) it was held that, 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.

The majority were also of the opinion that the allegations of the petition, though using the terms "reckless, negligent, and unlawful" in character

izing defendant's conduct, did not amount to a charge of gross negligence in the sense that such negligence precludes the defense of contributory negligence, and were, moreover, apparently of the opinion that the emotion and conduct of defendant after the accident were inconsistent with gross negligence in the sense of this rule. The dissenter was also of the opinion that while gross negligence could not, ordinarily, be predicated of mere excess speed, or failure to keep a lookout, or failure to keep to the right of the intersection of the highways, or failure to observe the statutory requirement to limit the speed to 12 miles an hour while passing school grounds, or failure to blow the horn when required, yet when all these acts of negligence are combined, under circumstances that are wholly inexcusable, it makes a clear case of gross negligence; and he added that it may be safely said that where one drives by school grounds, and observes children running into the high

way from the grounds in plenty of time to reduce his speed to the lawful requirement, and, by reason of his failure to do so, kills a child, it presents a question of gross negligence for the consideration of the jury. And he was of the opinion that the failure to allege gross negligence was curable by amendment.

In Riggles v. Priest (1916) 163 Wis. 199, 157 N. W. 755, it was held that the violation of a statute regulating the speed of automobiles was not, as a matter of course, gross negligence, rendering contributory negligence of the plaintiff immaterial to his right to recover. And see also Ludke v. Burck (1915) 160 Wis. 440, L.R.A.1915D, 968, 152 N. W. 190. And in Hopkins v. Droppers (1924) 184 Wis. 400, 36 A.L.R. 1156, 198 N. W. 738, 23 N. C. C. A. 993, it is held that, while the operation of an automobile by a minor, contrary to statute, is negligence as a matter of law, it is not gross negligence which will preclude the defense of contributory negligence.

In Waldren Exp. & Van Co. v. Krug (1920) 291 Ill. 472, 126 N. E. 97, the court held that where there was evidence from which the jury might have found that the automobile truck which ran over a boy playing in the street was moving at a high rate of speed on the north side of the street, which was its left, with the boy in the full view of the persons in the truck, and seen by them, and the speed of the truck was not slackened, the horn was not blown, nor any effort made to avoid the collision until just before it occurred, in other words, if, with full knowledge that an accident was imminent, the driver of the truck failed to make any effort to avert the accident, the jury might well have concluded that the conduct of the driver showed that conscious indifference to consequences, and a deliberate purpose not to exercise any care for the safety of the boy, which would charge the employer of the driver with the consequences of such wilful or wanton injury, and to such wanton negligence contributory negligence would not be a defense. And see also, 38 A.L.R.-90.

to the same effect, King v. Brenham Auto. Co. (1912) Tex. Civ. App.

- 145 S. W. 278.

And in Land v. Bachman (1921) 223 Ill. App. 473, where a statute provided that if the rate of speed of a motor vechicle operated upon a public highway, in rounding a corner or curve, where the operator's view of the road traffic was obstructed, exceeded 6 miles per hour, such rate of speed should be prima facie evidence that the motor vehicle was running at an unreasonable rate of speed, having regard to the traffic and use of the way, so as to endanger the life or limb, or injure the property, of any person, the court held that, in an action of trespass, allegations that the defendant drove a car around a curve in the highway at a greater rate of speed than 6 miles per hour, striking and injuring the plaintiff, amounted to a charge of an unlawful beating of the latter as the result of the criminal or wanton and wilful negligence of the defendant, to which allegations of contributory negligence would be no defense.

So, also, in Gregory v. Slaughter (1907) 124 Ky. 345, 8 L.R.A. (N.S.) 1228, 124 Am. St. Rep. 402, 99 S. W. 247, the court held that the driver of an automobile was guilty of gross negligence in driving his car at high speed across the intersection of two much-used streets and around the end of a street car, which obstructed his view of the crossing, so that, upon finding a pedestrian directly in the path of the car, he could not avoid a collision with him. This case is not directly within the scope of the annotation, inasmuch as it does not deal with the question as to whether the defense of contributory negligence is allowable under such circumstances, and its value consists mainly in the statement of what constituted gross negligence under the circumstances.

And, in Kelley v. Keller (1920) 211 Mich. 404, 179 N. W. 237, 20 N. C. C. A. 228, the court held that there was evidence from which the jury could infer that the driver of an automobile truck did not use ordinary care to dis

cover the danger of a bicyclist, nor to avoid collision with the latter after he became aware of it, and was thus guilty of gross negligence precluding the defense of contributory negligence, where testimony adduced showed that, on approaching the street intersection where the injury occurred, the driver, although cognizant of the bicyclist's danger and that a collision was likely to occur, failed to sound his horn so to attract the attention of the decedent, or to stop before he reached the latter, who was apparently unaware of his danger.

And see also Carsey v. Hawkins (1914) 106 Tex. 247, 163 S. W. 586, in which it was held that where the defendant, after discovering that mules driven by the plaintiff were frightened at the approach of his automobile and making efforts to escape from the driver, increased the speed and noise of the automobile, he could not set up contributory negligence of the driver of the team as a defense, inasmuch as the facts showed a case of discovered peril, and the duty devolved on the defendant of halting his

automobile and ceasing the noise until the mules could be removed or controlled.

In Gibbard v. Cursan (1923) 225 Mich. 311, 196 N. W. 398, where there was evidence that the truck which struck decedent was driven at a reckless and unlawful speed, as high as between 30 and 40 miles an hour, that it was not slowed down to a speed not exceeding 10 miles, as required by statute, that there was no slowing down until the truck was almost upon the decedent, that reasonable warning of approach was not given, that none of the precautions required by statute were taken to insure decedent's safety, that decedent was in plain view of the driver of the truck for 80 rods, that she was actually seen when at least 10 rods distant, that the truck was running on the edge of the pavement where the decedent and her companions were walking, the court held that the jury might find from such evi dence that the decedent was injured by wilful, wanton, and reckless misconduct of the driver, to which contributory negligence of the decedent would not be a defense. R. P. D.

of lien.

enforcement

Election of remedies, § 34 effect of statutory right to retain proceeds of resale.

3. The mere fact that by statute a vendor of chattels may retain the surplus in case of a resale to enforce his lien does not render such resale inconsistent with an action against the purchaser for the purchase price.