Russe v. Rogers

WiNsnow, J. A number of detail errors are alleged, which will be considered before proceeding to the main question on the merits of the case. Eirst it is claimed that it was error to admit evidence showing merely defective and unstable piling of the timber, because it is said that this was not the negligence complained of in the complaint. The consideration of this objection requires some further statement of the facts. In the complaint it is alleged that the defendants maintained a large crane or derrick in their yard near the pile of timbers in question, which was used to unload cars, and which had a swinging arm and a windlass and cable to which were attached chains and hooks for lifting timbers from cars, and that “defendants piled a number of large timbers, about fourteen feet long and twelve or fourteen' inches wide and of about the same thickness, in said yard, close to Grand avenue, so that said pile of timbers extended lengthwise with said avenue, and a few feet from said walk, and about four feet high; that defendants negligently and carelessly placed a large timber about fourteen feet long and twelve or fourteen inches wide and of about — 450 — the same thickness in said chains upon the top of .said pile of timbers above described, so that one end of said timber projected over said pile of timbers and slightly over said sidewalk, and negligently and carelessly allowed said timber so placed to remain partially suspended in said chains and partially supported by said pile of timbers, so that the same would upon the slightest application of force lose its position of equilibrium and fall over the edge of said pile of timbers, knowing said position and condition to be unsafe and dangerous prior to May 4, 1902, and negligently and carelessly allowed said timber to remain and be in such condition and position until the time of the inj'ury hereinafter described, knowing such position to be dangerous.” The complaint further states, in substance, that the timber in question fell upon the plaintiff “by reason of the defective machinery in said derrick, and the defective, negligent, and careless manner in which said timber was secured and placed as aforesaid, and by reason of the negligence and carelessness of defendants in so placing and leaving said timber.” The defendants claim that these allegations distinctly charge that the only negligence relied on was the leaving a timber partially suspended in the chains of the defective derrick and partly supported by the pile of timbers, and that all testimony introduced by the plaintiff tending to show simply that the timber was obliquely placed on the pile in an unstable or “teetery” position was inadmissible, because this was not the negligence pleaded; and the defendants’ further claim is that, the jury having found upon sufficient evidence, in answer to the fourth question of the verdict, that no timber was in any manner suspended in the derrick chains, all charges of negligence made in the complaint have been rebutted, and judgment should have been rendered upon the verdict for the defendants. We cannot accede to these propositions. In our opinion, such a construction of the complaint would be entirely too narrow and technical. It is true that the com — 451 — plaint charges at some length that the unstable timber was partially suspended in the derrick chains, but, after all, we think it clear that the gravamen of the chai’ge of negligence is that the timber was left in such a position upon the pile that slight application of force would cause it to fall. One of the reasons given for the instability was that the timber hung partially in the derrick chains, and this turns out to be unfounded; but still the material fact that the timber was in some manner very insecurely placed remains, notwithstanding the fact now appears that the chains of the derrick had nothing to do with the instability. In other words, it was the instability of the timber which was the gist of the complaint, and this may well have existed even though one •alleged reason for the instability was not proven. Another contention made by appellants is that the answer to the fifth question of . the special verdict should have been stricken out, because there was no credible evidence to support it. By this answer the jury found that the plaintiff was six and one half feet west of the sidewalk when the timber' started to fall upon her. The significance of this finding is that it determines the fact that the plaintiff and the timber which fell were within the limits of Grand avenue when the ■accident happened. Examination of the record shows that there was much evidence to the contrary of this finding, and it might well be that, were the question an original one, we should be compelled to hold that the evidence preponderates •against the finding; but there was evidence which tended to •support the conclusion of the jury, and we cannot say that it was incredible, nor that all the reasonable probabilities and inferences were the other way; .hence we cannot reverse the ruling of the trial court upon the question. We pass now to the main question-in the case, namely, whether a verdict for the defendant should not have been directed upon the uncontradicted evidence, or, in default of •such a direction, whether judgment should not have been — 452 — rendered for tbe defendants upon tbe special verdict and tbe uncontradicted evidence. Tbe simple facts to be considered in tbis connection are that a child five years of age was playing upon a pile of timber left by defendants within tbe limits of tbe street, and was injured by reason of a timber falling upon her, which bad been insecurely placed upon tbe pile; there being evidence tending to show, and tbe jury having-found, that tbe insecurity of tbe timber was an act of negligence on tbe part of tbe defendants. Tbe appellants claim that tbe question whether tbe pile of timber was within tbe limits of tbe highway or not is of no moment. Tbe traveled portion of tbe highway was of ample width, and was properly prepared for travel. Tbe strip which tbe defendants-used along tbe margin of their land upon which to pile lumber and timber, though within tbe limits of tbe street as dedicated, was used with tbe consent of tbe public authorities,, and did in fact belong to tbe defendants, subject only to tbe easement' of tbe public for travel; and tbe plaintiff was not using or attempting to use tbe place for travel, but for play,, and hence was a trespasser. Assuming that she was a trespasser, and that tbe timber pile was rightfully, in its position,, tbe contention is that there can be no liability except upon tbe extreme theory of tbe doctrine of “attractive nuisances”' as laid down in tbe line of cases generally known as “Turntable Cases.” These cases are referred to in tbe case of Klix v. Nieman, 68 Wis. 271, 32 N. W. 223, as “a class of cases which bold tbe proprietor liable for injuries resulting to children from dangerous machinery left unguarded and so exposed as to be calculated to attract their interference with it;” but they are not expressly approved or disapproved in that case, and in fact tbe question has never been directly considered and passed upon by tbis court, though tbe reasoning of tbe case cited would seem rather opposed to tbe doctrine than otherwise. Tbe doctrine in these cases seems to-be that by creating or leaving on one’s premises a dangerous453 machine or thing which is ©specially calculated to attract children to play therewith, one impliedly invites children on his premises, and is guilty of negligence, if he does not take precaution to protect such children from injury. Thompson, Negligence, §§ 945-1024. This doctrine has been debated in many cases and in many courts with the result that there are many authorities supporting the doctrine in its broadest application, while many repudiate it entirely, and others give it qualified recognition, and practically limit it to railroad turntables. Appellants’ counsel argue very strongly against the doctrine, and have submitted a markedly able brief reviewing the authorities on both sides of the question, and we shall direct that the citations be preserved in the report of the case. We do not, however, find it necessary to decide the question in the present case. This is not the case of an owner of land putting an attractive and lawful but dangerous machine or thing upon his own property and leaving it unguarded. It is the case of an owner placing an unlawful nuisance in the highway and leaving it ungarded. The defendants owned the land of the highway to the center line thereof opposite their premises, subject to the public easement of travel. They might doubtless temporarily obstruct the sidewalk in the transaction of their business, but they had no right to permanently store' a pile of timber in the limits of the highway, even opposite their own premises. The timber was wrongfully there, even had the public authorities assumed to consent to it. It was a nuisance in fact and in law. Had a loose timber fallen from the pile by reason solely of negligent piling, and injured a traveler passing on the sidewalk, there would be little doubt of the liability of the defendants, and of the city as well, provided the danger was one which had existed long enough so that the city officials should have known of it. Denby v. Willer, 59 Wis. 241, 18 N. W. 169. Does the fact that the child was not then a traveler, but had turned aside .for a moment to follow a natural — 454 — and childish inclination to play, entirely relieve the defendants from liability? This-is the simple question presented, and it is not entirely easy of solution. In this case it appeared affirmatively by the evidence that children were accustomed to play in and about the street and the lumber yard to the knowledge of defendants, and to such an extent that the defendants had found it necessary to direct their employees not to allow children to play in the yard for fear they would get hurt. But aside from these facts the fact must also be considered that children do play in the public highways, and will doubtless continue to do so as long as child nature remains the same as it is now. The child who lags unwilling on the wsy to school and chases a bright-winged butterfly, or plays a game of marbles, or climbs a tempting pile of timber in the highway to play seesaw for a moment, does not thereby become an outlaw, and when injured by another’s negligence he cannot be turned aside with the curt, remark that he has ceased to travel, and become a trespasser, and hence can complain of no one’s conduct. His natural habits and instincts must be in some way and degree recognized. This court has said that “children playing in the street are entitled to consideration.” Meibus v. Dodge, 38 Wis. 300. The child has a right in the highway. It must be recognized that he will play therein if occasion offers. Indeed, we would not have it otherwise. The man or woman who would wish to wholly stop the flow of childish spirits while on the highway, and turn the little ones into men and women before their time, must either have had no childhood of his own or must have forgotten the fact. It would not be accurate to say that the streets are made for children to pay in, but it would be equally inaccurate to say that a property owner can totally disregard the fact that children always have, and probably always will, play therein. He cannot lawfully lay anything like a trap for the child upon the highway, and escape the consequences by saying that the child — 455 — would not have been injured had he confined himself to traveling exclusively. The case of Meibus v. Dodge, just cited, is an illustration of the principle. In this case a man left a dog, which he knew to be ferocious, in his sleigh upon the public street, and a child passing upon the sidewalk turned aside and meddled with a whip in the sleigh, and the dog threw him down and bit him. A judgment for the plaintiff was affirmed. The contention there was that the child was committing a trespass when he meddled with the whip, and hence was entitled to no protection; but the argument was rejected, and it was said that the act of the child was one which might well be anticipated; that the child did not forfeit all claims to protection simply because he turned aside for a moment and touched the whip; and that the defendant had no right to leave a dog, which he knew to be ferocious, unsecured in the public street, where children were liable to be passing, and might be reasonably expected to indulge in such childish acts as the one in question. We regard the reasoning of the case as quite satisfactory, and in substance applicable to the present situation. The central idea is that children are liable always to be upon the public streets, and also are liable to turn aside from traveling and play or meddle with attractive things left thereon; that a reasonable man must bear this fact in mind, and hence may not negligently or willfully place upon the street a dangerous animal or trap well calculated to arouse the admiration or curiosity of a child, and, when it has accomplished the natural result vdiich might reasonably be expected, escape the consequences by saying that the injured child should not have yielded to his curiosity. It is well known that there is nothing much more attractive to children than a pile of lumber or timber, especially one which affords opportunities for a seesaw. This, according to the findings, was what the defendants placed in the street in the present case, so arranged that the heavy timbers would almost immediately fall when the childish — 456 — amusement commenced. We think there was ample room for the jury to find, as they did, that the act of leaving the timber in the highway in this condition was actionable negligence, and that the result which followed was one which might reasonably have been anticipated by an ordinarily prudent man under the circumstances; and we also hold that the fact that the child turned aside from traveling to play for a brief time in the highway does not necessarily prevent a recovery, although such might be the result in an action against the city to enforce the statutory liability under sec. 1339, Stats. 1898. As previously indicated, we do not decide what would be the result had it appeared that the pile of timber was not upon the street, but upon the defendants’ premises; nor do we intimate any opinion thereon. In the present case the pile of timber was in the highway, and this fact must be kept in mind at all times in determining the effect of the principles laid down. By the Court. — Judgment affirmed.