Kayser v. Lindell

CANTY, J. On April 12, 1896, and for a long time prior thereto, defendant [125] was the owner of a lot in Red Wing, in this state. The lot fronted 180 feet on a certain street, and there were upon the lot two dwelling houses, fronting on the street, one on each side of the lot; the space between the houses being 50 feet. Defendant resided in one of these houses himself, and rented the first floor of the other house to plaintiff, who, with his family, resided therein. The topography of the ground was such that the back of the lot was about nine feet lower than the front of it. About 15 feet from the rear of the space between the two houses was a retaining wall 7-|- feet high on the back side. The space in front of this wall was filled in so as to make a comparatively level space or yard between the houses, and on the front side the wall extended above the ground one foot. This wall was nearest the house in which defendant resided. Next to it and nearest the house in which plaintiff resided, was a row of woodsheds, which extended from the line of the wall to the rear of the lot. In this space in front of this wrall and these woodsheds, and between them and the street, were two private walks, two clothes reels, and a well. The plaintiff’s child, a boy of the age of 3-J years, and the children of defendant’s other tenants, were in the habit of using this space as a playground. On April 12 aforesaid, this child, while so playing in this yard, climbed upon this wall, fell off down to the ground at the back of the same, and was injured. Plaintiff brought this action under G. S. 1894, § 5164, to recover for the injury, had a verdict, and from an order denying a new trial defendant appeals. We are of the opinion that the verdict cannot be sustained. If this yard was an appurtenance or part of the premises rented to plaintiff, as the trial court seemed to hold, then, on common-law principles, it is clear that defendant is not liable. Harpel v. Fall, 63 Minn. 520, 65 N. W. 913. But, conceding that this yard was not a part or appurtenance of the rented premises, and that the child was in the yard by the implied invitation of defendant, we are still of the opinion that plaintiff is not entitled to recover. The doctrine of the “turntable cases” cannot be extended to such á case as this. See Stendal v. Boyd, supra, page 53, s. c., 67 Minn. 279, 69 N. W. 899; Haesley v. Winona & St. P. R. Co., 46 Minn. 233, 48 N. W. 1023. [126] It is true that, if the owner of premises keeps upon them a concealed trap, and a person coming upon the premises by invitation is injured thereby, he may recover. But there was no mantrap in this case. The wall was plain to be seen. The child knew it, was there, and fell off of it in the daytime. While the owner of premises may owe more duty to a child than to an adult coming upon his premises by implied invitation, yet he is not bound to guard every stairway, cellarway, retaining wall, shed, tree and open window on his premises, so that a child cannot climb to a precipitous place and fall off. The order appealed from is reversed, and a new trial granted.