(dissenting). In Warden v. Miller, 112 Wis. 67, 87 N. W. 828, Mr. Justice Dodge said:
“It seems hardly necessary at this late day to reiterate the rule that a jury’s conclusion, especially upon such a question as negligence, cannot be disturbed by this court if there be any credible evidence, which, in its most favorable view, to any reasonable mind, can support the conclusion reached. A conclusion of negligence, of course, involves a comparison of the conduct under consideration with the conduct of the great mass of mankind under like circumstances. This standard must rest in the experience and observation of the individual or individuals who are to make the comparison, and in the ordinary affairs of life it is beyond question that men selected from the various professions and employments of life to sit upon juries are quite as able to correctly form and apply that standard as are men whose experience is confined to a single profession.”
Mr. Justice Dodge, speaking for the full court, thus happily, clearly, and comprehensively stated the law as it uniformly has been held by this court, but which has been avoided sometimes by the court looking at the facts from its point of isolation. This court gets none of the color, that *267comes to' the trial court and the jury from seeing the witnesses and hearing them testify. It is not acquainted with local conditions. It has not the same experience as has a jury selected from the vicinage. The jury is entitled to- be held in high esteem, and its verdict given great weight. Since the act of 1897, ch. 176, jurors have been peculiarly. the agents of the courts in administering justice. They are selected by sworn jury commissioners who are appointed by the circuit judges. The commissioners are required to ■ select as jurors none but “citizens of the United States who are qualified electors of this state, who are possessed of their natural faculties, who are not infirm or decrepit, who are esteemed in their communities as men of good char- - acter, approved integrity and sound judgment, and who are able to read and write the English language understandingly.” Sec. 2524, Stats.
This case was tried in one of the civil courts of Milwaukee specially created to dispense justice in small cases. A jury was had and its verdict was for plaintiff. A new trial was denied by the trial judge and judgment entered for plaintiff. From this judgment defendant appealed to the circuit court, where the proceedings were reviewed and the judgment affirmed. The verdict was for $250. This court now reverses the judgment below and orders judgment for defendant. I cannot concur.
The facts are simple. The plaintiff was a little girl of twelve. On October 17, 1921, she was walking west on the south side of Vliet street in Milwaukee. She came to Twelfth street at about 6:15 p. m. It was raining. The ■child had defective vision. She had removed her glasses because of the mist gathering on them. She was incumbered with an umbrella in one hand and a banjo case in 'the other hand. The traffic on both streets was heavy. As plaintiff came to the crossing she looked both ways and saw that the traffic was stopped on Twelfth street, which she had to cross, and the course of traffic was on her street. *268She proceeded at a fast walk to cross. The street was wet and slippery. There were street-car tracks on the street. As she approached within four or five feet of the curb on the opposite side of the street from the point she entered, she was struck by an auto going south, knocked down, and run over. The machine passed clear over her body and some five feet or more beyond. It stopped twenty-five or thirty feet south of the south curb of Vliet street. Fortunately, the wheels straddled the body of the girl and a tragic death was averted. The defendant was a man of mature years, possessed of all his faculties, ensconced in a Ford coupé with the wind-shield open and the lights on. He had been held up on the north side of Vliet street by the traffic going east and west on that street. As the traffic turned, he started from a full stop, south on Twelfth street, across Vliet street. He sounded no alarm, and, as described, struck the little girl head on about the middle of the bumper, ran clear over her and five feet or more beyond, before he stopped. These are the physical facts, undisputed. The jury could have found that the place of accident was fairly light, and that the girl, with her signal of distress — the umbrella up — could be easily seen. From these facts the jury were required to draw the proper inferences and determine the ultimate question of negligence.
Reliance is had on Brickell v. Trecker, 176 Wis. 557, 186 N. W. 593. Without discussing that case, it seems plain that the opinion of the court in this case proceeds on a wrong theory. The theory is that the plaintiff had as good an opportunity to discover the defendant’s car as the defendant had to discover the plaintiff. That is not the test of defendant’s negligence. The co’urts have never, consciously so held. The question of negligence, as Mr. Justice Dodge correctly held, “involves a comparison of the conduct under consideration with the conduct of the great mass of mankind under, like circumstances.” It would have been reversible error for. the jury or the trial court to have applied *269the test announced in. the opinion here. The question for the jury was: Did the defendant exercise the care that the great mass of mankind would have exercised under like circumstances ? Such a comparison involved the consideration of all the facts, — defendant being a man of maturity, possessed of all his faculties, seated in a closed car, windshield open, with the highway unobstructed before him, his lights on, and starting his car from a dead stop to cross a street in a crowded thoroughfare, sounding no horn, and shooting ahead with such speed and recklessness as to run down a little girl crossing the street. The child had the legal right to cross the street. She had the same right on the 'street as defendant. In considering defendant’s negligence we may not judge it by what the child did or did not do. That involved the independent question of the child’s negligence. The two propositions are separate. They, were properly separately submitted to the jury. I am of the opinion that defendant’s negligence was conclusively established. If such conduct as his does not make a case of negligence for the jury, then the little children who have to cross the streets in our large cities are in great danger. The opinion of the court suggests that “the use of the automobile has brought into the courts a flood of litigation.” I would say it is not so much the use of the automobile that brings litigation, — rather it is the negligence of reckless drivers that brings about this condition. This court’s approval, as a matter of law, of such driving as in this case I fear will add to the flood, — certainly it will add to the dangers of pedestrians, already too great.
It is not claimed in the opinion that the little girl was negligent. I do not think it could be so claimed in the face of the facts. That question was properly submitted to the jury, and it found her free from negligence.
For the reasons stated, I respectfully dissent .from the opinion of the court.