The principal issue raised on this appeal is whether there is credible evidence to sustain the jury's apportionment of causal negligence, 60 percent as to the appellant and 40 percent as to the respondent.
Dax was traveling at a speed of 50 to 60 miles per hour as he approached the settlement. A jury could reasonably conclude that under the circumstances this speed created an unreasonable risk of harm, even though this speed was within the posted limits in this area. Dax had traveled this route many times prior to the day of the accident, en route to his place of employment in Green Bay from his home in Luxemburg. He knew that young children lived in this area and
At a distance of 69 feet from the Conard tavern, the building at the western most point of the settlement, Dax was traveling between 50 and 60 miles per hour, according to his own testimony. Given this speed at this point, assuming (as he testified) that he applied his brakes full force and immediately upon observing a child crossing the highway, he would have traveled a distance of about 243 feet before stopping.
However, a reasonable jury could also find that Barbara Blahnik was contributorily negligent with respect to lookout, and failure to yield the right-of-way. On the day of the accident, Barbara was delivering newspapers to the businesses and homes located in the settlement area. Immediately prior to the accident, she had delivered a paper to the Conard tavern. It was undisputed that, after stopping at the tavern, she intended to deliver a paper to the Cravillion home located on the south side of the highway. There were two versions as to her movements after she dropped off the paper at Conard's tavern.
According to her own testimony, and the testimony of the tavern owner, Conard, Barbara had parked her bike adjacent
However, Dax offered another view of Barbara's pattern of movement across the highway. He testified that as he came abreast of the elm tree, Barbara rode her bicycle out from behind a car parked slightly to the north of the eastern-most highway post in a series of posts located 15 feet south of the Conard tavern and 10 feet north of the north edge of the concrete on Highway 54. These poles extended in an east-west direction for 20 feet, the western most post being six feet east of the west end of the tavern. Therefore, on the straight line east and west, Barbara would have first appeared 26 feet east of the east edge of the Cravillion driveway.
When he saw Barbara, Dax testified that he immediately applied his brakes and turned his car to the right so that his right wheels were on the south shoulder of Highway 54. There were tire marks on the south shoulder of the road east of the Cravillion driveway. The point of impact between his vehicle and the bicycle was 10 to 15 feet east of the east edge
Therefore, according to Dax, Barbara began her movement from behind a parked car 26 feet east of the east edge of the Cravillion driveway and 10 feet north of the north edge of the highway, and traveled at an angle across the 20-foot highway to a point one to two feet from the south edge of the highway and 10 to 15 feet from the east edge of the Cravillion driveway. Thus, Barbara traveled 35 feet while he traveled 79 to 83 feet. In view of Dax's testimony as to his speed, between 50 to 60 miles per hour, and the probable speed of a three-quarter-size bicycle driven by a 54-pound, eight-year-old girl, starting her movement on gravel, it is likely that Dax would have seen Barbara at a more-westerly point than 69 feet from the east edge of the Cravillion driveway. Yet, even assuming that he was 100 feet from the east edge of the Cravillion driveway when he saw Barbara, if he had applied his brakes immediately, he still would have struck the child at a point 15 feet east of the Cravillion driveway, had she followed the pattern of movement he described. At 50 miles per hour, the total stopping distance is 243 feet.
Importantly, the testimony of Mr. and Mrs. Richard Cymela, eyewitnesses to the accident, supports Dax's version of Barbara's movements. The Cymelas were traveling west
From the testimony of the Cymelas and consistent with the physical facts, the jury could have reasonably concluded that Barbara emerged from behind a parked car at a distance of 10 feet north of the north edge of the highway and 26 feet east of the east edge of the Cravillion driveway, and that she moved across the highway into Dax's path so that even though he saw her the moment she became visible to eastbound traffic and immediately applied his brakes, he could not avoid a collision.
The jury could reasonably conclude that such pattern of movement was negligence with respect to lookout and failure to yield the right-of-way to vehicles approaching on the highway. They could reasonably have found negligence in these respects on the part of an eight-year-old girl who lived adjacent to the highway, had been instructed by her parents and in school as to the importance of lookout when crossing the highway on her bicycle, and had had considerable experience in crossing the highway on her bicycle
We must conclude that in the instant case, the apportionment of negligence 60-40 in favor of Dax was within the range of reasonable determination.
Appellant contends that the trial court committed prejudicial error in its instruction relating to Barbara Blahnik's duty to yield the right-of-way, in that the court did not expressly direct the jury to consider her youthful age and limited experience when making its finding as to whether or not Barbara was guilty of this specific item of contributory negligence.
In determining the contributory negligence of a young child, the trier of fact is to expressly consider the age and limited experience of such a person. "The degree of care required of a child depends upon his age, capacity, discretion, knowledge, and experience. A child of tender years is not held to the same degree of care as an adult."
In instructing the jury as to the meaning of contributory negligence on the part of Barbara Blahnik, the court instructed them that they were to consider her youthful age when determining whether she generally failed to exercise reasonable care for her own safety. The court further instructed
The court said:
"In determining whether or not a child was exercising the care that one of his or her age, capacity, discretion, knowledge and experience would exercise under the same or similar circumstances, due consideration should be given to the child's instincts, for while a child may have the knowledge of an adult respecting dangerous acts, he or she may not have the prudence, discretion nor the thoughtfulness to avoid the hazards or risks to which they expose him or her. It is important that you keep in mind the difference between the tests to be applied by you in determining whether the motor vehicle operator, Edmund Dax, was negligent and in determining whether Barbara Blahnik was negligent."
In instructing the jurors as to the specific duty of lookout for her own safety, the court again directed the jury to consider her tender years. However, when instructing the jury as to the duty to yield the right-of-way to approaching traffic on the highway, he made no express reference to the conditioning factor of her youthful age. Appellant argues that the instruction misled the jury into believing that as to the duty of right-of-way, Barbara was to be treated as an adult.
The special verdict question on contributory negligence was submitted in the form of an ultimate fact conclusion:
"Just prior to the accident in question, was the plaintiff, Barbara Blahnik, negligent with respect to failing to exercise ordinary care for her own safety ?"
The court expressly directed the jury that in making this general determination, they were at all times to consider Barbara's age and limited experience and were not to apply the same standards of care to her as they applied to Dax.
On the crucial question as to comparison of negligence, the court instructed:
"In answering this comparative negligence question, if you are to answer it, you should take into consideration that Edmund Dax was an adult and Barbara Blahnik was a child, and consider and weigh the credible evidence bearing upon the inquiries presented, in the light of the difference in the rules which you were previously instructed, to apply in determining whether the conduct of the parties was negligence."
The instructions made it clear that the jury was to make a general judgment as to Barbara's due care for her own safety, taking into consideration certain constituent elements of due care, and that in making this judgment and in making a comparison with the negligence of Dax, they were continually to take account of her youthful age. There was no error in the instructions.
During their deliberations, the jury sought instruction from the court as to the effect of the apportionment of negligence upon the jury award. The court properly refused to give such information. We have consistently held that, "`[i]t is reversible error for the trial court by instruction to the jury to inform the jury expressly or by necessary implication of the effect of an answer or answers to a question or questions of the special verdict upon the ultimate right of either party litigant to recover or upon the ultimate liability
Our holding is based on the fundamental separation of the questions in the special verdict on the issues of liability from those of damages. If the trier is persuaded that a preponderance, however narrowly, favors a finding of negligence, he is then to award the full damages proved. The trier of fact is not to discount damages because of his view of the degree of fault in the defendant's conduct. Conversely, he is not to increase damages because the defendant's conduct was especially wanton and irresponsible. Neither is the trier of fact to temper his findings as to negligence by any consideration of the extent of the damages suffered.
By the Court.—Judgment affirmed.