Harris v. Eastern Wisconsin Railway & Light Co.

WiNslow, 0. J. Tbe case is certainly novel, but tbe principles governing it bave ceased to be doubtful. It is settled in this jurisdiction that one wbo maintains in tbe public street an unguarded object or condition likely to attract children to meddle or play therewith, witb tbe probable result of causing injuries to themselves or others lawfully using tbe street, is guilty of actionable negligence, providing such person knows or is chargeable witb knowledge of the attractiveness of tbe object or condition and tbe consequent probability of such meddling and resulting injuries. Busse v. Rogers, 120 Wis. 443, 98 N. W. 219; Kelly v. Southern Wis. R. Co., ante, p. 328, 140 N. W. 60. It is not necessary, of course, that tbe defendant be tbe owner of the attractive nuisance, — it is sufficient if be maintain it. He must bave tbe power of control. In tbe present case tbe defendant company did not own tbe tower, but tbe evidence shows, presumptively at least, that they were in practical control of tbe basket and tbe apparatus for hoisting it. Otherwise they could not fulfil their contract witb tbe city to keep tbe lamps lighted. Tbe, fact that at long intervals a city official might use tbe basket to inspect tbe tower can make no material difference. It cannot affect tbe right, nay, tbe duty, of the lighting company to see that tbe basket was safely moored, if it knew or ought to bave known of tbe danger of such an occurrence as the present. It was using and was rightfully using tbe whole contrivance for its own purposes and its own profit. Tbe city would bave no right to object to tbe installation of any reasonable device which would make it safe. A padlock witb duplicate keys, one to be furnished to the city, would bave insured safety. These principles really determine the case. The jury on sufficient evidence found negligence of the defendant proximately caus-; ing the death .of Harris, and acquitted him of contributory negligence. No detail errors are assigned which are of sufficient importance to require discussion. By the Court. — Judgment affirmed.