Long v. American Ry. Express Co.

PROVO STY, J. A scale on wheels, consisting of a platform and an upright post and an arm at the top of the post extending at right angles from the platform, was left by the defendant company on the sidewalk opposite its office in the town of Winnfield. The plaintiff’s 10 year old son, coming in contact with it in the dark, had his two upper front teeth knocked out; and this suit in damages is brought in his behalf. The accident happened while he and a companion of the same age were returning from the picture show, at night, after the street lamps had been put out. They were running ahead of a lady who had taken them to the show. Plaintiff’s son was ahead of his companion. The sidewalk consists of a concrete part extending 10 feet from the property line, and of a grassed part 4 feet wide between the concrete part and the curb. Winnfield is a town of 4,000 to 5,000 inhabitants; and the sidewalk in cfuestion was one of the most frequented of the town. The defense is that the scale was left on the grassed part, and out of the pathway, where it was not negligence to leave it; that it was there when the boy ran into it. The evidence would go to show that it was partly, if not entirely, on the concrete part; and the probability that in the interval between the time the defendant’s agent closed their office for the night and the time of the accident it was moved by some stranger is so remote as to be hardly worthy of consideration. [1] On the hypothesis, however, of its having been on the grassed part when the boy .ran into it, the defendant company would still be liable. For the boy would not have been at fault for running on this grassed part, so that the responsibility for the accident would still rest entirely upon defendant; and, as sidewalks are provided for the use of pedestrians, and not for the storing of scales, the leaving of a scale upon them, with which pedestrians may collide in the dark, necessarily constitutes negligence, especially when the leaving of obstructions upon the sidewalk is expressly prohibited by town ordinance, as was the case in the present instance, according to the testimony of one of defendant’s witnesses. The damages were fixed at $500 below. This can hardly be considered enough for a loss which will be continued to be felt through life. We see that in other jurisdictions $2,000 has been allowed for a similar loss. We will fix the amount at that. The judgment in this case is therefore increased to $2,000, and, as thus increased, is affirmed. The defendant to pay the costs of appeal.