Several issues arise concerning the instructions given to the jury which the defendants argue were prejudicial "plaintiff instructions." The trial court instructed on a driver's duty when children are present, Form 1045, Wis. J I—Civil, Part I. Giving of this instruction was error. This is not a case in which the driver had actual notice
A judgment will not be reversed on the ground of misdirection of a jury unless this court is of the opinion after an examination of the entire record that the error has affected the substantial right of the party seeking the reversal.
The defendants argue that without this instruction Flury was free from negligent lookout as a matter of law, urging this court to take judicial notice of the smallness in height of the five-year-old child, that he came from the right of the driver, and the traffic conditions required Flury to keep a vigilant lookout straight ahead. However, Flury testified on adverse examination he never saw the child until it was about to be hit in front of the car. At the trial, he varied this to some extent. Main street of Arcadia is 52 feet wide with the center line marked. Flury testified he was driving in the middle of his lane. The left side of his car was then approximately 10 feet north of the center line and the right side 10 feet from the north curb. Allowing six feet for cars parked along the curb, the right side of Flury's car was approximately four feet from these parked cars, and the child would have had to travel seven feet from the edge of the parked cars to the middle front of Flury's car. The shoe of the child which was found 16½ feet from the curb and which was testified marked the point of accident would sustain a reasonable inference the child was struck approximately 10 feet out from the parked cars and in the open street. The child's father, an eyewitness to the accident, stated the child walked out into the street. Flury claims he ran. This must be taken together with Flury's testimony that he did not see the child until he struck him. On the
In the instructions, the court included the following:
"It appears that the defendant, Gail Flury, is crippled because of the effects of polio. The extent or degree of his disability is for you to determine from the evidence. A person who is physically handicapped has the same right to use as others the streets and sidewalks and he is governed by the same standard of care for his own safety and safety of others as that which governs normal persons, that is, ordinary care. But in order to measure up to that standard of care, he must more vigilantly exercise caution through other senses and other means in order to compensate for his physical handicap. Due consideration should be given to defendant Gail Flury's physical handicap and to the fact that it was his duty to exercise a greater degree of care, proportioned to the degree of his physical impairment, in looking for approaching pedestrians and in operating his motor vehicle than would have been required had he been a physically normal person."
This was adapted by the trial court from suggested Form 1050, Wis. J I—Civil, Part I, which in form applied to defective hearing or eyesight as affecting lookout. The instruction as given covered a physical handicap and included
Assuming this a proper case for the giving of the instruction, we find its language objectionable. The instruction states in order to measure up to the standard of ordinary care a handicapped person must "more vigilantly exercise caution" through other senses and other means to compensate for his physical handicap. The phrase "more vigilantly exercise caution" implies a greater degree of care is required. A person afflicted with a physical disability must put forth greater effort in order to attain the standard of ordinary care, but this should not be characterized as caution. The words "other senses" imply Flury was handicapped
An inference of negligence does not arise from the existence of a physical handicap nor does its existence justify the giving of the instruction. A physical handicap may in a case have no bearing or relationship to negligence, but under different facts the handicap and the person's efforts to compensate therefor would be material in determining whether the handicapped person met the standard of ordinary care. The error in giving this instruction was not prejudicial because it went primarily to management and control, an issue that should not have been submitted to the jury with or without the instruction. Since the judgment of the trial court can be sustained on the issue of lookout alone, a reversal is not required.
The trial court refused to give instructions on the defendant's right-of-way as against a pedestrian crossing a public street in the middle of the block and on the right of the defendant to assume the exercise of due care by a pedestrian. The latter instruction, while proper if this case involved an adult, was improper as applied to this child who by the grace of statute was not negligent. The instruction
In Kuklinski v. Dibelius (1954), 267 Wis. 378, 66 N.W.2d 169, we said, in a case involving a four-years and eight-months-old child running across the street in mid-block, that an instruction on the motorist's right-of-way and an emergency instruction were proper in respect to management and control. Here, the issue is whether it is error not to give the right-of-way instruction. Defendants had the benefit of the emergency instruction. The motorist has a right to some reliance on the fact he has a right-of-way and pedestrians will observe their statutory duty to yield. Crawley v. Hill (1948), 253 Wis. 294, 34 N.W.2d 123; Grohusky v. Ferry (1947), 251 Wis. 569, 30 N.W.2d 205. When one having the right-of-way sees a pedestrian or another car, he may assume the pedestrian or car will observe his right-of-way but if the pedestrian or car does not yield the right-of-way he is under a duty to manage and control his car so as to attempt to avoid the accident. But such a reliance affects primarily management and control or speed and does not affect one's duty to maintain a proper lookout. Puhl v. Milwaukee Automobile Ins. Co. (1959), 8 Wis.2d 343, 99 N.W.2d 163; Oelke v. Earle (1956), 271 Wis. 479, 74 N.W.2d 336; Whyte v. Lindblom (1934), 216 Wis. 21, 255 N. W. 265, 256 N. W. 244. This reliance has no basis in fact when an autoist sees a child who cannot be held guilty of negligence for failing to yield the right-of-way. Here, Flury did not see the child at all before it was too late. Failure to give the instruction on right-of-way was, therefore, not error. The defendants requested an instruction that the child's conduct was the sole and intervening cause of the accident even though the child was not negligent. There is little
We cannot agree the jury was prejudiced on either the liability or the damage questions. In spite of the erroneous instructions and eliminating the issue of management and control, the jury would have had to find Flury was causally negligent as to lookout. The evidence on damages presented a jury question and while the trial court thought the damages were high by $1,000, they were not excessive. The plaintiff James Lisowski sustained a fracture of the left femur which has now healed but resulted in a slight angulation and a permanent shortening of the leg by one-half inch. He received cuts on his head and mouth and has a permanent scar on his lip. He suffered a painful infection of the ankle for several months, requiring approximately 25 trips for medical care.
In a case where negligence of the plaintiff and defendant must be compared, the errors committed in this case would require a new trial. No such problem is presented here and although there are several errors, their cumulative effect does not destroy the causal negligence as to lookout. If the trial court had found Flury negligent as to lookout as a matter of law, we would not have considered that error. This view precludes the exercise by this court of its discretionary power of reversal and granting a new trial.
By the Court.—Judgment affirmed.