#### Rogers, by guardian *ad litem,*Appellant, vs. Brown, Respondent.

*October 5*—

October *25, 1910.*

*Changing finding by jury: Appeal: negligence: Automobiles.*

1. A decision of tide trial court changing a jury’s finding upon a question of negligence is entitled to great weight and should not he disturbed on appeal unless clearly erroneous.

2. In an action for injuries sustained by a boy in a collision with an automobile which defendant was driving not faster than six miles per hour, the evidence — consisting of the testimony of *473several eye-witnesses and tlie physical fact of a dent in the side of the fender — that the hoy while playing with others and looking backward ran into the side of the machine, is *held*so strong and convincing, as against the boy’s own testimony that he had stopped and was standing in the street looking backward when he was struck, that this court should not disturb the decision of the trial court setting aside a finding of the jury that defendant was negligent.

Appeal from a judgment of tbe circuit court for Jefferson county: George Gbimm:, Circuit Judge.

*Affirmed.*

Tbis is an action brought by tbe plaintiff, *Floyd Rogers,*an infant, by Ms guardian, to recover damages for injuries sustained by reason of tbe alleged negligence of tbe defendant in running and operating an automobile in tbe city of Eort Atkinson about tbe bour of 7:45 on tbe evening of June 27, 1909.

By its answers to five questions submitted on a special verdict tbe jury found (1) that plaintiff was injured by coming in contact witb an automobile driven by tbe defendant at tbe above time and place; (2) that defendant was guilty of want of ordinary care in tbe driving and management of said automobile; (3) that such want of ordinary care on the part of tbe defendant was tbe proximate cause of tbe injury to plaintiff; (4) that plaintiff was not guilty of any want of ordinary care which contributed to produce tbe injury; and (5) that plaintiff was entitled to compensatory damages in tbe sum of $2,500.

Thereafter, upon motion of the defendant, the court changed the answers to tbe second ancj fourth questions of tbe special verdict, struck out tbe answer to tbe third question, denied tbe motion of plaintiff for judgment upon tbe special verdict as rendered, and ordered that defendant have judgment upon such verdict as amended. From a judgment dismissing tbe action plaintiff appeals.

For tbe appellant there was a brief by *Groiophorst, Evans &*Thomas, and oral argument by *E. A. Evans.*

For tbe respondent there was a brief, by *Webb & Trait,**474attorneys, and *B. B. Kirldand,*of counsel, and oral argument, by *Mr. Paul H. Trait*and *Mr. Kirldand.*

BaeNes, J.

Two questions are involved on tbis appeal: (1) Did tbe court err in setting aside tbe finding of tbe jury bolding that defendant was guilty of negligence. (2) Did tbe court err in setting aside tbe finding of tbe jury acquitting, tbe plaintiff of contributory negligence and in deciding as a matter of law that plaintiff was negligent? Tbe conclusion reached on tbe first question obviates tbe necessity of considering tbe second.

Tbe defendant was proceeding south on Main street, one of tbe principal business streets of Fort Atkinson, at a speed not exceeding six miles per hour, running bis machine about ten or twelve feet distant from tbe sidewalk on tbe west side of tbe street. Main street is intersected by South Water street, which runs east and west. There was a water trough on tbe north side of South Water street about fifteen feet west of tbe west line of Main street. Tbe plaintiff and some other boys were playing around tbe trough on tbe evening of tbe accident and were throwing water on each other. Kenneth Rankin, one of tbe boys present, dared tbe plaintiff to-throw water on him. Tbe challenge was accepted, and immediately after throwing tbe water, tbe plaintiff started to run, crossing diagonally in a southeasterly direction over a portion of South Water street and proceeding into Main street. Tbe Rankin boy ran after plaintiff, but discontinued bis pursuit at about tbe west line of Main street. Tbe plaintiff collided with tbe automobile close to tbe crosswalk on tbe south side of West Water street and about ten or twelve feet east of tbe east line of tbe west sidewalk on Main street.

Five eye-witnesses testified in behalf of tbe defendant, all of whom said that tbe boy ran into tbe side of tbe machine while be was looking backward over bis right shoulder. There was a dent in tbe fender over tbe right front wheel of *475the automobile, neaFVhere the same is bolted to the running, board, which the defendant testified was not there before the collision occurred. The defendant and one other witness, testified that this dent was at or very close to the place where plaintiff struck the machine.' The other three witnesses did not specify the precise part of the side of the machine which plaintiff struck. The defendant further testified that when he saw the boy the latter was running and was only about three feet from the machine, and that the collision occurred, almost instantly thereafter and before he could in any way avoid it.

Three witnesses testified on behalf of the plaintiff, aside-from himself, who said that they saw him run out into Main, street and stop and look back over his right'shoulder. None of these witnesses saw the collision, and it was the opinion of' the trial court that this testimony in no way negatived or put-in issue the evidence of the witnesses for the defendant to the-effect that at the time of the collision the boy was in fact running. The plaintiff testified that he did not look back until, after he came to a full stop, and that it was while he was-standing looking backward he was hit. Whether or not the boy was standing in the street sufficiently long so that the defendant in the exercise of ordinary care could have seen him in time to have avoided the accident was a material inquiry in ascertaining whether or not the defendant was negligent.. If such was not the case, then there was no evidence even tending to show negligence on his part.

Can this court say that the trial court erred in holding the-defendant blameless ? The witnesses, aside from the plaintiff, were disinterested bystanders. Every eye-witness to the-transaction said that the boy ran into the machine. Aside from this evidence there is the physical fact of the dent in the fender on the side of the machine. No witness contradicts the testimony that the boy came in contact with the side of the machine, except as it is inferentially disputed by the *476-evidence of tbe boy to tbe effect tbat be was standing at tbe time be was struck. Tbe trial court bad tbe benefit of seeing •and observing tbe witnesses, wbicb tbis court bas not, and, while we are by no means concluded by tbe decision' of tbe trial judge on sucb a question, it is entitled to great weight. iAs is said in tbe following cases, sucb a decision must be affirmed “unless it clearly appears tbat it was erroneous.” *Powell v. Ashland I. & S. Co.*98 Wis. 35, 38, 73 N. W. 573; *Lind v. Uniform S. & P. Co.*140 Wis. 183, 188, 120 N. W. 839; *Bohn v. Racine,*119 Wis. 341, 343, 96 N. W. 813; *Nicoud v. Wagner,*106 Wis. 67, 72, 81 N. W. 999; *Collins v.*Janesville, 117 Wis. 415, 423, 94 N. W. 309; *Pumorlo v. Merrill,*125 Wis. 102, 103 N. W. 464; *McCune v. Badger,*126 Wis. 186, 189, 105 N. W. 667.

- It will be seen tbat tbe evidence in behalf of defendant as to bow plaintiff received bis injury was strong and convincing. Tbat given on tbe part of tbe plaintiff was very slight, meeting by inference only the claim tbat plaintiff collided with tbe side of tbe machine. An examination of tbe evidence of tbe plaintiff leaves tbe impression tbat be bad no •clear conception of bow tbe accident did happen. In view of tbe state of tbe evidence and of tbe physical fact established in tbe case and of tbe rule of law referred to, we conclude that tbis court should not disturb tbe decision of tbe trial judge on the question of defendant’s negligence.

*By the Court.*— Judgment affirmed.