Webster v. Corcoran Bros.

MaRshalu, J. Counsel for appellant present several matters for consideration which seem beside the case. A recovery was neither sought nor obtained upon the ground that the relation of master and servant existed between plaintiff and defendant when the former was injured. The law in respect to .liability to a volunteer has no application, nor has liability of a master for the consequences of an act of his servant outside the scope of his employment, as by engaging some one to help him without authority, express or implied, to do so. [579] The question presented does not seem -to involve serious difficulties. It was competent for appellant to unload its grain where it did. It was charged with kuowledge that young children, — too young, without efficient warning and considerable oversight, to he free from peril of personal injury in case of being allowed to be near the" rope, — were liable to be rightfully in the vicinity. In such circumstances it owed such children the duty of ordinary care to keep them without the zone of danger. In that respect, as claimed by counsel for respondent, the situation was quite similar to Kelly v. Southern Wis. R. Co. 152 Wis. 328, 140 N. W. 60, and Secard v. Rhinelander L. Co. 147 Wis. 614, 133 N. W. 45. While it was not within the scope of the teamster’s employment to invite or direct the boy to assist in handling the rope, it was within such scope and that of the man on the wagon, who was directing operations,- to reasonably guard the rope from interference by children. If they failed in that respect, and in consequence the child-received the injury, the principle of the Kelly Case fits the facts perfectly. The principle involved may be concisely stated thus: If a person lawfully conducts operations in a place and manner liable to imperil the safety of children of tender years, rightfully in the vicinity, and such children are or may be reasonably expected to be lawfully there, he owes to them the duty of exercising ordinary care to protect them from such peril. That is true, as said‘in the Kelly Case, even in the event of the situation being such that a child could not be in peril without becoming a trespasser, if such an occurrence might reasonably be expected, under the circumstances, in the absence of exercise of ordinary care on the part of those conducting the work to prevent it. The duty to exercise such care, in such situations, is important. - It is due to the innocents who are liable to be injured in case of such duty being neglected, and it is due to the public as well. [580] As said in the Kelly Case: “Conservation of child life and safety, as to artificial perils, is one of such importance that ordinary' care may well hold every one responsible for creating and maintaining a condition involving any such with reasonable ground for apprehending that children of tender years may probably he allured thereinto.” Why does not the foregoing apply to the facts of this case? According to the verdict, defendant was responsible for a condition which was naturally calculated to, and in fact did, allure children of tender years to become so involved in it as to imperil their safety. The creation of the condition gave rise to the duty to exercise ordinary care for the safety of any such children. Not only was there failure to use such care, as in the Kelly Case, but there was an invitation to plaintiff to meddle with the rope, — breach of duty by commission as well as omission. The chief circumstance upon which defendant relied to defeat the plaintiff’s claim there, that is, that the child was a trespasser in touching the rope, did not exist here. On the contrary there was an invitation to do the very thing which duty required ordinary care to prevent. By the Court. — The judgment is affirmed.