Dahl v. Milwaukee City Railway Co.

The record does not show whether the nonsuit was ordered because the judge thought there was no evidence tending to show that the driver of the car was negligent, or because he was of the opinion that it was conclusively proved that those in charge of the child were guilty of negligence which contributed proximately to her death. The case must, therefore, be considered in both aspects.

1. In order to determine whether the driver was negligent, it is necessary to consider the grade of the track; the velocity with which the car was moving; the extent to which the crossing of Tenth street is used as a thoroughfare by footmen; the facilities which the driver had to see a child upon the track at that point, and whether he ought not to have seen the deceased approaching the track earlier; the weight that should be given to any circumstances which momentarily diverted his attention; and whether he did all that could reasonably be required of him, after he discovered the deceased on the track, to avoid the injury. Upon these, and perhaps upon other facts and circumstances, depends the solution of the question whether the driver was or was not guilty of negligence. Under such circumstances the law is thoroughly well settled that the question is for the jury. Hill v. Fond du Lac, 56 Wis. 242; Nelson v. C., M. & St. P. R'y Co. 60 Wis. 320; Knowlton v. Milwaukee City R'y Co. 59 Wis. 278; Hoppe v. C., M. & St. P. R'y Co. 61 Wis. 357; Parish v. Town of Eden, ante, p. 272; and other cases in this court there cited.

2. Does the testimony prove conclusively that the mother of the deceased was negligent in leaving the child in the care of Peter during her temporary absence from her home ? This question is solved in the negative by the case of Hoppe v. C., M. & St. P. R'y Co., supra, which, in its facts bearing upon the question, is very much like this case._ Indeed, if there is any difference between them, the proof of the contributory negligence of the mother in that case is stronger *655than it is here. Yet it is there held that the question of her negligence was for the jury. On the authority of that case, as well as of many other cases determined by this court, it must be held that it is not conclusively proved that the mother of the deceased was guilty of any negligence contributing directly to the death of her child.

It was error, therefore, to nonsuit the plaintiff, and we must reverse the judgment for that reason.

By the Court.— The judgment of the county court is reversed, and the cause will be remanded for a new trial.