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In this case, Putney, the defendant, was an eleven year old boy, and Vosburg, the plaintiff, was fourteen. On February 20, 1889, while sitting across an aisle from each other in their Waukesha, Wisconsin schoolroom, Putney lightly kicked Vosburg in the shin "just below the knee." The incident occurred during school hours and inside the classroom. The touch was slight and plaintiff did not feel the kick immediately. A short while later however plaintiff was in extreme pain and cried out loudly. The next day he was sick, and by the fourth day he was vomiting. On the fifth day, swelling was so bad counsel was required and plaintiff had a first operation to drain the wound. On the sixth day, a second operation occurred, which found that the bone had so degenerated that plaintiff would never again be able to use the leg. Unknown to the defendant, the plaintiff had sustained an injury to the same area during an earlier sledding accident. According to expert testimony the kick aggravated the existing wound, and as a direct result Vosburg permanently lost the use of his leg. Vosburg sued Putney alleging assault and battery and was awarded $2,800. On appeal, the verdict was set aside and the case was remanded for retrial. In the subsequent case, a judgment for $2,500 was granted. Putney appealed. The case was returned to the jury, which again returned a verdict for the plaintiff and awarded $2,500. After motions JNOV were denied, the defendant appealed.
