|ROSENBERRY, C. J.
Action begun December 23, 1929; judgment entered February 15, 1930. On August 30, 1928, the plaintiff Lester Osborne, then a boy of thirteen years of age, was employed by the Wisconsin State Journal in running errands. He was returning to his place of employment on a bicycle. Traveling westerly on East Washington avenue, he turned northerly on Pinckney street, and as he proceeded north on Pinckney street he followed a car driven by the defendant. The defendant stopped his car for the purpose of leaving some clothing at a cleaner's. The defendant opened the door to his car intending to step from it on the left-hand side. The defendant's car at the time of the accident stood between a line of cars parked at the curb and the easterly rail of the street-car tracks. As the defendant's car stopped and the door opened, the plaintiff endeavored to pass, the right handlebar of his bicycle came in contact with the outside edge of the door, tipping the bicycle and throwing the plaintiff to the ground, causing the injuries complained of.
There was a jury trial; the jury found the defendant negligent as to lookout and the opening of his car door, but that he was not negligent in stopping his car where he did; that defendant's negligence was the cause of the injury; that the plaintiff was not guilty of contributory negligence; and assessed plaintiff's damages at $ 2,500. Judgment was entered upon the verdict, from which the defendant appeals.
It is hardly necessary to say that we enter upon a discussion of this matter without any expectation of saying the final word in regard to it. It seems, however, not only proper but necessary to call attention to some fundamental considerations. The difficulty of dealing with the subject is vastly increased because the terminology of the law of torts is at present undergoing a decided change. The character of this change is exhibited more completely and thoroughly in the restatement being made under the auspices of the American Law Institute than elsewhere. Heretofore the law of torts in general has been stated in terms of applicable remedies rather than in terms of wrongful invasion of legally protected interests and the consequences thereof. It is apparent that the ultimate question being investigated in cases like this is whether or not the defendant is liable to the plaintiff in damages. Stated in terms often employed, this liability follows as a matter of law in the absence of contributory negligence or intervening cause when certain basic facts are ascertained: (1st) Did the defendant fail to exercise ordinary care? (2d) Except in a certain class of cases referred to later, under the circumstances of the case, should the defendant, as a reasonably prudent person, have anticipated that the act would probably cause damage to another? (3d) Was the act complained of the cause in a legal sense of plaintiff's injury? One is prompted to say, why not submit to the jury the simple question, Was the defendant careless as a result of which the plaintiff sustained the injuries complained of? The question, however, immediately arises, What is carelessness and when is an act the cause of the injury complained of? In answering these questions it would be necessary to define a new set of terms and we would return to the starting point.
Manifestly, not every want of care results in liability. In order to measure care some standards must be adopted. Human beings must live in association with each other, as a consequence of which their rights, duties, and obligations are relative, not absolute. We apply the standards which guide the great mass of mankind in determining what is proper conduct of an individual under all the circumstances and say that he was or was not justified in doing the act in question. While it is true that the standard thus set up is varying and indefinite, it is nevertheless one which may be fairly and justly applied to human conduct. Such a standard is usually spoken of as ordinary care, being that degree of care which under the same or similar circumstances the great mass of mankind would ordinarily exercise.
In a consideration of this subject it is easy to get lost in a maze of metaphysical distinctions, or perhaps it may better be said it is difficult not to be so lost. The defect in the instruction approved in Hamus v. Weber is that it indicates no standard by which the conduct of the defendant is to be measured. In support of the instruction it is argued that the great mass of mankind do not indulge in conduct which results in harm to others; and therefore it must follow that if one does an act which results in injury to another, he departs from the standards which are followed by the great mass of mankind. The argument is based upon an inference not readily drawn, and, in addition to that, the premise is not sound. We are constantly doing acts which result in injury to others which are not negligent and do not result in liability. Many of the cases classified as those damnum absque injuria and cases where the damages are said to be consequential and remote are illustrations of this. While the acts result in injury to others, they are held to be not negligent because they are in conformity to what the great mass of mankind would do under the same or similar circumstances. The statement is true in all situations where liability exists, but it does not exclude situations where liability does not exist.
The fundamental idea of liability for wrongful acts is that upon a balancing of the social interests involved in each case, the law determines that under the circumstances of a particular case an actor should or should not become liable for the natural consequences of his conduct. One driving a car in a thickly populated district on a rainy day, slowly and in the most careful manner, may do injury to the person of another by throwing muddy or infected water upon that person. Society does not hold the actor responsible because the benefit of allowing people to travel under such circumstances so far outweighs the probable injury to bystanders that such conduct is not disapproved. Circumstances may require the driver of a fire truck to take his truck through a thickly populated district at a high rate of speed, but if he exercises that degree of care which such drivers ordinarily exercise under the same or similar circumstances, society, weighing the benefits against the probabilities of damage, in spite of the fact that as a reasonably prudent and intelligent man he should foresee that harm may result, justifies the risk and holds him not liable. . . .
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.
By the Court.--Judgment reversed, and cause remanded with directions for further proceedings as indicated in the opinion