O'Leary v. Michigan State Telephone Co.

Blair, J. On the 5th of November, 1904, the plaintiff, who was a child of the age of seven years, was, with other — 244 — children, playing in and about Gold street, in the city of Grand Rapids, in front of, and near, his father’s house. While so engaged thdy saw a wagon of the defendant, upon which were a number of employés, turn from Bridge street and drive south on Gold street and stop at a post standing on the west side of the street. The men proceeded to unload and throw upon the ground reels, ropes, snatch blocks, and other equipment, preparing to string a cable on poles standing in Gold street from Bridge street south to Butterworth avenue. This post was adjacent to the sidewalk, and was used as a guy stub or anchor post, to the bottom of which the snatch block was attached. This post stood 50 or 60 feet south of Bridge street, between two and three feet from the sidewalk, and between the sidewalk and the curb. The. plaintiff and the other children crossed the street, and, while the men were at work about the guy stub or anchor post, they proceeded to roll the reel upon which had been wound the lead rope, and push it around in the street. They had rolled this reel up by the sidewalk and had been playing with it about 20 minutes, when Mr. McCarthy, one of defendant’s employés, came along, took it away from them, and stood it on end by the sidewalk. Mr. McCarthy testified that : “When we first drove up where the anchor post is there was some children there; they were on the wagon when I first' noticed them, around where we were unloading the stuff. The plaintiff in this case was one of them, and there was three or four others. After we had the lead rope up and had taken it off the reel, we started to pull in the cable. When we were stringing out the rope, they were around in our way and under our feet a little, and I told them to keep away from there. At the time I told the children this, they were pulling on the rope first when I told them to keep away, and' the next time I told them to get away from there they were rolling the reel around in the road. When I said, * pulling the rope ’ I meant the ‘ reel. ’ ” Mr. McCarthy further testified that when he started to take the reel away from the children they ran across the — 245 — street and stood on the sidewalk and laughed at him. When he said he would get them if he caught them around there, they laughed and seemed to take it as fun. This was before the snatch block was put in place at the bottom of the anchor post, and nothing was said to the plaintiff or the other children at any time after the snatch block was put on the rope, although they were in the street •across the way playing about there. This snatch block was á large appliance eight inches in diameter, made of iron and wood, with a hook fastened to the post. It had one removable side with a clasp to it, and in the center is a large pulley inclosed and encased in the frame. The pulley was on a swivel and the rope passed over the top of the pulley and came out underneath, and to' the end of which was hitched the team. There was thus a circuit of the cable and rope, and as the team moved south on Gold street from the anchor post, the rope passed through the snatch block over the pulley, and thus the cable was elevated upon the cross-arms of the poles and moved to the north as the team moved south. There was no guard or other protection on the snatch block to prevent a person’s hand from going into it with the rope, and a hand could go in where the rope would. As the team went south on Gold street, the employes of the defendant took positions on the poles, as it was necessary for a man to be on each pole to free the cable clips that would catch on the cross-arms as the cable moved. Mr. McCarthy went ahead of the team as it went south on Gold street, watching for signals from the men on the poles, and Mr. McCue, another employé, stood on the corner of Gold and Bowery streets, nearly a block from the snatch block and anchor post, to guard that crossing. The latter was the nearest man to the snatch block at the time the plaintiff was injured. Frequent stops were necessary as the cable was being strung, on account of the cable clips catching, though the longest of these stops were about four or five minutes. While this work was in progress, the snatch block was — 246 — left entirely unguarded and unprotected and no one stationed at or near it to warn plaintiff and the other children or any one else of danger; Mr. McCue, the nearest employé to the snatch block, being at the corner of Gold and Bowery streets, a block distant. The pulley in the snatch block revolved rapidly, when the team was. in motion, and, the, pulley and block being dry, made a squeaking noise as the rope passed around it, which frightened-Mr. Timmer’s horse- and attracted the attention of the plaintiff and his little companion, who were across the street, and they came over to the snatch block to look at the pulley revolving (or, as the plaintiff called it, “the wheel”), the moving rope, and the other strange equipment, and also to see what caused the noise. They reached the snatch block at a time when the team was standing still, and, presumably, during one of the frequent stops caused by the cable clips catching, for at that time the rope was not moving, but standing still, and they began playing with it. Plaintiff, being the larger of the two, had hold of the top rope or the. one passing into the snatch block, while the Rybrick child had hold of the rope which moved from the snatch block when the team was in motion. The place where they had hold of the rope was about 18 inches from the snatch block, and, while so playing, the employes of the defendant, without notice or warning to the plaintiff, and, in fact, without paying any attention at all to the snatch block, suddenly started up the team, and, in a short period of time, about as long as it would take the team to travel 18 inches along Gold street or take one step, the plaintiff’s hands were drawn into the snatch block and crushed. The trial judge submitted the case to the jury, plaintiff recovered judgment, and defendant appeals to this court. The defense, at the close of the plaintiff’s proofs, at the close of the testimony, and, in this court, relies upon the defense that the case as made by the plaintiff was not sufficient in law to entitle him to have the same submitted — 247 — to the jury, but that it was established from the proofs as a matter of law: (1) That the defendant was not negligent. (2) That the plaintiff was guilty of contributory negligence. (3) That the plaintiff was a trespasser. We shall consider first whether plaintiff was a trespasser, as contended by appellant, citing Kaumeier v. Railway Co., 116 Mich. 307 (40 L. R. A. 385); Ryan v. Towar, 128 Mich. 468 (55 L. R. A. 310), and other cases. We do not think this case is ruled by the cases cited, but that it falls within the principle of Powers v. Harlow, 53 Mich. 507. That case was not overruled by Ryan v. Towar, but was distinguished in the majority opinion, the writer saying: “But in that case the child was not a trespasser on the land whatever may be said of his meddling with the explosives.” The case of Powers v. Harlow is an authority in this State, and is supported by the great weight of authority in this country and in England. The present case differs from Kaumeier v. Railway Co. and other cases cited in appellant’s brief in that here the owner of the property was present, operating the property, and the plaintiff was where he had a right to be. The plaintiff was in the public highway, where he had as much right to be as defendants employes, and while his laying his hand upon the cable was technically a trespass, it was no more so than taking the exploder cap from the box in the case of Powers v. Harlow. Plaintiff’s mere technical trespass did not set in motion, as in the cases cited, the agencies which caused his injury; those agencies were brought into operation and controlled by defendant’s employés. There is reasonable ground for distinction between a case where something is left in the highway which can only injure a child by his meddling with it and putting it into operation in the absence of the owner or person having it in charge — 248 — and a case like the present when the owner is present operating the apparatus and has actual notice that the children are attracted by the tackle and will play with it unless prevented. The questions of negligence and contributory negligence were properly submitted to the jury. The age of the plaintiff has an important bearing upon both questions. Defendant’s employes knew that the children were attracted by, and disposed to play with, the apparatus, since they had been playing with the reel which McCarthy had taken away from them, and then chased them across the street. Notwithstanding this, the children came back again. “Q. It was not a part of your duties to watch them or to watch that snatch block, was it ? “A. Yes; it was in a way; I was supposed to look for trouble of any kind that was there. “Q. You would not very well do that when facing the other way and looking for the work ahead of you ? “A. Of course, after we got started pulling, then I was supposed to look ahead. * * * I warned Willie to keep away from the reel. I warned him myself once after we got started with the rope, him and another boy. There were two boys with hands on the rope and I told them to keep away from there after they started to string the cable. * * * It was after the team started. The boys were playing on the rope. They were about 28 feet or 30 ahead of the snatch block. They were behind me. They were jumping on the rope a little and I told them to go away, and they went away and that was the last I saw of them. We had started when I warned the boys. “ Q. Now, after you started to string this cable, how many times did you have occasion to go back or look around towards the snatch block before you got to Bowery street ? “ A. I did not go back at all when I looked around. When I first warned him, Willie went away and I did not see him until he got ‘ catched.’ I told him to keep away and they went away the time they were told. I had in mind the danger of a break in the rope, as the rope breaks once in a while and there is danger if there is anybody on it. I did not direct their attention in any way to — 249 — the block or the danger of the block. I never saw them near the block. They were^on the.rope.” It was for the jury to say whether, under the circumstances, the defendant’s employes were not negligent in leaving the block unguarded and in not giving the children a proper warning of the danger of playing with the rope and in taking no precautions to ascertain whether the children had returned. It was also for the jury to say whether the plaintiff had sufficient warning of or sufficient understanding of the danger to render him guilty of contributory negligence. The judgment is affirmed. Carpenter, C. J., and McAlvay, Montgomery, Ostrander, and Moore, JJ., concurred with Blair, J.