Burant v. Ortloff
Burant v. Ortloff
Opinion of the Court
The accident occurred at approximately 2:30 p. m. on July 29, 1966, near the intersection of Blake Avenue and High Street in Racine, Wisconsin. The plaintiff, Mark Anthony Burant, then three years of age, was struck by an automobile driven by the defendant, Jerome Alfred Ortloff. Blake Avenue
The action was instituted by the plaintiff, Mark Anthony Burant, through his guardian ad litem, and by his father, Anthony Burant. The complaint alleged the defendant was negligent as to speed, lookout, management and control, and failure to yield the right-of-way. At the pretrial conference the responsive pleading of the defendant was amended to include a counterclaim for contribution against the plaintiff, Anthony Burant, for his alleged negligence in failing to supervise the activities of his son. The trial was held on September 20,1969. The jury found the father, Anthony Burant, causally negligent and the defendant free of negligence.
Two issues are raised on appeal:
(1) Was the defendant negligent as to lookout and speed as a matter of law?
(2) Did the trial court err in permitting the defendants to amend their answer to include a counterclaim against the plaintiff’s father?
Was the defendant negligent as a matter of law?
The defendant testified that on July 29, 1966, he left his place of employment at approximately 2:24 p. m. His car was parked on the south side of High Street facing east and about two blocks from the Blake Avenue intersection. After turning his vehicle around, he proceeded in a westerly direction on High Street. He stopped at the intersection of High and Forest Streets, one block east of the Blake-High intersection. After passing through the intersection, he increased his speed to approximately
Defendant’s car stopped with the front of the car approximately even with the edge of the east curbline of Blake Avenue. Thirty-six feet of skid marks were measured from the rear wheels of the defendant’s vehicle. The right skid mark was 12 feet 5 inches from the north side of High Street. High Street is 36 feet in width, and is level and straight in the vicinity of the accident.
The plaintiff contends that the defendant was negligent as to lookout and speed as a matter of law. This court has held that a motorist must exercise increased vigilance with respect to lookout and speed where he knows or should know children are present. Burke v. National Farmers Union Property & Casualty Co. (1967), 36 Wis. 2d 427, 153 N. W. 2d 545. In Binsfeld v. Curran (1964), 22 Wis. 2d 610, 126 N. W. 2d 509, the defendant motorist observed the child some 100 feet from the site of the accident, descending some steps and approaching the street, prior to the time the child appeared in the street
“. . . The plaintiffs advance the proposition Mrs. Cur-ran was negligent as a matter of law because she failed to increase her vigilance when she knew the minor was likely to come into her course of travel. . . .
“. . . The rule is simply stated in Wis J I — Civil, Part 1,1045, as:
“ ‘Drivers of motor vehicles are chargeable with the knowledge that children of tender years do not possess the traits of mature deliberation, care, and caution of adults. The driver must increase his vigilance if he knows, or in the exercise of ordinary care should know, that children are in, or are likely to come into, his course of travel.’
“This does not mean a driver of a motor vehicle is under a higher standard or degree of care approaching absolute liability but rather, when children are present or likely to come into his course of travel, he must exert greater effort in respect to lookout, speed, and management and control of his car to fulfill the duty of exercising ordinary care under such circumstances. As in any other case of negligence, the question is for the jury unless the facts are such as to compel a determination as a matter of law.’. Binsfeld v. Curran, supra, page 612.
In this case there was an athletic field on the south side of High Street. The defendant, however, testified that there were not many children in the area at the time of day the accident occurred. Defendant also testified that after seeing the first two boys cross the street they did not look or call back to indicate the presence of other children, and that although he was watching for other children he did not see the plaintiff until he appeared from behind the parked car.
The plaintiff relies upon the decisions of this court in Lisowski v. Milwaukee Automobile Mut. Ins. Co. (1962), 17 Wis. 2d 499, 117 N. W. 2d 666; and Burke v. National Farmers Union Property & Casualty Co., supra, wherein
The plaintiff also contends that the defendant was negligent as to speed as a matter of law because he admittedly increased his speed after seeing the first two boys cross the street. We do not agree. It is the plaintiff’s position that in increasing his speed the defendant disregarded the danger inherent in the presence of other children.
Sec. 346.57, Stats., provides in part:
“(2) ... No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard for the actual and potential hazards then existing. . . .
“(3) . . . The operator of every vehicle shall, consistent with the requirements of sub. (2), drive at an appropriate reduced speed when approaching and crossing an intersection . . . when passing school children, ... or other pedestrians . . . .”
When the defendant first saw the two boys who crossed the street prior to the accident, they were about four
The plaintiff also contends that the defendant was negligent in not reducing his speed while approaching an intersection. However, the jury could have believed that the defendant was traveling at 23 miles per hour prior to the accident. Allowing for the length of the car, the 36 feet of skid marks extending from the rear wheels would indicate the defendant was over 40 feet from the intersection when he first applied his brakes to avoid hitting the child. Whether he would have decreased his speed still further in approaching and crossing the intersection is uncertain. On the evidence, there is nothing to show he was negligent, as a matter of law, in failing to decrease his speed in approaching the intersection.
Contribution.
Appellant contends that the trial court erred in permitting respondents to amend their pleadings in order to maintain a counterclaim against Anthony Burant, the father of the child, for contribution. We conclude that the trial court did not err in permitting the amendment to the responsive pleadings.
However, we do not reach the question of whether Mr. Burant was negligent because he would be liable for contribution only in the event the defendant was found negligent. The jury found the defendant free from negligence. The answer to this question completely determines the liability of the defendant. Therefore, the answer of the jury to the question in the special verdict as to the
We find no prejudicial error in the trial of this case.
By the Court. — Judgment affirmed.
Reference
- Full Case Name
- Burant (Anthony), and Burant (Mark), by Guardian ad litem, and v. Ortloff and another, and
- Status
- Published