# Bentson v. Brown > Wisconsin Supreme Court · April 7, 1925 · 186 Wis. 629 URL: https://www.frixlaw.com/law-library/cases/8194720 ## Case - **Full name:** Bentson, Administrator v. Brown - **Court:** Wisconsin Supreme Court - **Decided:** April 7, 1925 - **Citations:** 186 Wis. 629; 203 N.W. 380; 38 A.L.R. 1417; 1925 Wisc. LEXIS 282 - **Precedential status:** Published - **Opinion:** Dissent by Crownhart - **Judges:** Crownhart, Jones - **Cited by:** 36 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8194720 ## Opinion text Crownhart, J. (dissenting). At the place of the accident there was a highway running east and west. Intersecting this highway, but not crossing it, was a highway running north and south. The defendant was driving west on the east-and-west highway and turned to go south on the *638 north-and-south highway. Connecting the two highways was a curved highway cutting the corner between them. At the north of the north-and-south highway were school grounds which extended easterly along the east-and-west highway four or five rods. Before he reached the school grounds the defendant noticed some twenty school children coming out of the schoolhouse toward the highway. He was driving at the rate of twenty-five miles an hour, according to his own testimony, and slackened his speed around the curve to about twenty-miles an hour. There was no obstruction to his vision, and he could see plainly at all times the road to the front of him and to the right as he was making the turn, and he saw the children all the time until they got into the road. As he rounded the turn, and just as he crossed the line of the east-and-west highway, he struck the deceased boy with the front of his car, dragging him some sixty-five feet, and resulting in the instant death of the boy. The jury found that the defendant violated sub. (3), sec. 85.01, Stats-., in that he did not keep to the right of the center of the highway intersections in making the turn, and that he violated sub. (2), sec. 85.08, in that he failed to reduce the speed of his automobile to such a rate as to tend to avoid danger of accidents. The jury further found that defendant failed to exercise ordinary care by failing to keep a proper lookout as he approached the place of the accident, and that the defendant failed to- sound his horn as he approached the intersections of the highways. The jury found that each of these violations of the statutes and acts of negligence was a proximate cause of the death of the boy. Besides the findings of the jury, it stands admitted in the evidence that the plaintiff passed the school grounds at a rate of speed of at least twenty miles an hour, which is also a violation of sub. (2), sec. 85.08, which limits such speed to twelve miles an hour. The .sections cited are penal statutes. *639 The deceased was a boy twelve and one-half years old, who, in company with other boys, left the schoolhouse to cross the highway to play-grounds on the opposite side. The boys were racing, with the deceased slightly in the lead. His companions saw the car and were able to stop in time to escape injury, but the deceased evidently did not see the car and was instantly killed. Sec. 2405m, Stats., provides, among other things, that in any action brought to this court by appeal, if it shall appear probable that justice has for any reason miscarried, the supreme court may in its discretion reverse the judgment appealed from, remit the case to the trial court for a new trial, and direct proper amendments to the pleadings. I think justice has miscarried in this case, and that the case should be reversed for a new trial. To my mind the defendant was guilty of gross negligence. The plaintiff failed to allege gross negligence, and I think for that reason, and that reason only, he is denied relief. I would not.think that mere excess speed would ordinarily be gross negligence; or mere failure to keep a lookout; or failure to keep to the right of the intersection of the highways; or failure to observe the statutory requirement to limit the speed to twelve miles an hour while going by school grounds; or failure to blow the horn when required. But where all these acts of negligence are combined under circumstances that are wholly inexcusable, I think it makes a clear case of gross negligence. I think I may also safely say that where a person drives by school grounds and observes children running into the highway from the grounds, in plenty of time to reduce his speed to the lawful requirements, and by reason of such failure to reduce his speed kills a child, it presents a question of gross negligence for the consideration of the jury. This court has frequently defined gross negligence as “such a degree of rashness or wantonness ... as evinces a total want of care for the safety” of others (Ryan v. *640 La Crosse City R. Co. 108 Wis. 122, 131 , 83 N. W. 770 ); “wanton or reckless disregard of life” (Raasch v. Milwaukee E. R. & L. Co. 151 Wis. 170, 171 , 138 N. W. 608 ); “reckless and wanton disregard of the rights and safety of another” (Willard v. C. & N. W. R. Co. 150 Wis. 234 , 136 N. W. 646 ). “To constitute gross negligence the act or omission causing, the injury must itself have been wanton or wilful.” Kuchler v. Milwaukee E. R. & L. Co. 157 Wis. 107, 109 , 146 N. W. 1133 . The act of the defendant in driving at an unlawful rate of speed by school grounds was intentional, wilful, utterly reckless, and in disregard of human life. Thus, if this remedial statute, sec. 2405m, is ever to be availed of in the interest of justice, I think this instant case calls loudly for action under it. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8194720. Public record. Not legal advice.