Osborne v. Montgomery

203 Wis. 223, 234 N.W. 372 (1931)

 

RULE:

Every person is negligent when, without intending to do any wrong, he does such an act or omits to take such a precaution that under the circumstances present he, as an ordinarily prudent person, ought reasonably to foresee that he will thereby expose the interests of another to an unreasonable risk of harm. In determining whether his conduct will subject the interests of another to an unreasonable risk of harm, a person is required to take into account such of the surrounding circumstances as would be taken into account by a reasonably prudent person and possess such knowledge as is possessed by an ordinarily reasonable person and to use such judgment and discretion as is exercised by persons of reasonable intelligence and judgment under the same or similar circumstances. This instruction does not apply where the actor was a child or an insane person. If the actor in a particular case in fact has superior perception or possesses superior knowledge, he is required to exercise his superior powers in determining whether or not his conduct involves an unreasonable risk of injury to the interests of another, so the instruction would not be applicable to such a case. It will not apply in cases where if it be found that the act complained of was performed, it would, under the circumstances, be negligent as a matter of law.

FACTS:

The boy was injured when the door of the driver's automobile struck the boy's bike. The driver contended that the boy was guilty of contributory negligence, that damages were excessive, and that the trial court erroneously instructed the jury. In reversing and remanding, the court held that the evidence presented a clear jury question as to whether or not the boy was guilty of contributory negligence. The court concluded that jury instructions were improper.

ISSUE:

Whether an act that causes injury to another is automatically presumed negligent.

ANSWER:

No.

CONCLUSION:

Every person is negligent when, without intending to do any wrong, he does such an act or omits to take such a precaution that under the circumstances present he, as an ordinarily prudent person, ought reasonably to foresee that he will thereby expose the interests of another to an unreasonable risk of harm. This instruction does not apply where the actor was a child or an insane person. If the actor in a particular case in fact has superior perception or possesses superior knowledge, he is required to exercise his superior powers in determining whether or not his conduct involves an unreasonable risk of injury to the interests of another, so the instruction would not be applicable to such a case. It will not apply in cases where if it be found that the act complained of was performed, it would, under the circumstances, be negligent as a matter of law. Considering that the evidence in this case presented a clear jury question as to whether or not the boy was guilty of contributory negligence and that the jury instructions were improper, a remand of the case is in order.

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