Herrem v. Konz

Siebecker, J. It is evident from an inspection of the allegations of the complaint that the second alleged cause of action is a repetition of the facts alleged in the first cause of action charging that the defendant was guilty of ordinary negligence toward the plaintiff in the respect stated and that it proximately caused the plaintiff’s injuries, with the additional allégation “that solely because of the defendant’s gross negligence in failing to guard said shaft and defendant’s utter disregard of the safety of children in said premises” the plaintiff was injured. This allegation adds nothing by way of fact to the charge in the first alleged cause of action. If the facts alleged do not constitute gross negli [577] gence as defined in tbe adjudications of this court, then tbe allegation characterizing them as “gross negligence” cannot make it so. Rideout v. Winnebago T. Co. 123 Wis. 297, 101 N. W. 672. Tbe essential character of “gross negligence” is clearly set forth in the following: “It is obvious that no degree of mere carelessness or inadvertence, however remote from thé care customarily used either by the ordinarily careful man or by the exceptionally careless one, constitutes gross negligence.” The latter suggests necessarily “intent, either actual or constructive, to cause injury,” or conduct evincing “a total disregard for the safety of persons or property.” Watermolen v. Fox River E. R. & R. Co. 110 Wis. 153, 85 N. W. 663. It is manifest that the facts pleaded do not permit of an interpretation to the effect that the defendant was guilty of an actual or constructive intent to cause» another injury in the respects charged in the complaint, and hence the complaint does not state a cause of action for ’“gross negligence” as claimed by the plaintiff, and the demurrer to the second cause of action was properly sustained.' The question is, Did the court err in holding that the complaint does not state a cause of action for ordinary negligence? The allegations of the complaint above set forth charge that the defendant knew that children of tender age living in the immediate vicinity of his lumber mill were in the habit of playing in the open spaces underneath the ground floor of the mill in close proximity to a rapidly revolving shaft, which under the alleged facts and circumstances was inherently dangerous to children of tender age. These allegations must be liberally construed in passing on the issues presented by the demurrer. We cannot anticipate whether or not the evidence upon a trial of the case will sustain the complaint in all its intendments. But the pleading on its face alleges sufficient facts to charge the defendant with negligence towards the plaintiff as a boy of tender years, in that it charges that he played upon the premises of the defendant [578] with the permission of the defendant and that the rapidly revolving shaft in the alleged location and unprotected condition was inherently dangerous to children of tender years. Under these circumstances the defendant was hound to anticipate that an injury might result to some child by coming in contact therewith. This brings the alleged cause of action within the law of the case of Meyer v. Menominee & M. L. & T. Co. 151 Wis. 279, 138 N. W. 1008, and Brinilson v. C. & N. W. R. Co. 144 Wis. 614, 129 N. W. 664. The court erred in sustaining a demurrer to the first alleged cause of action. By the Court. — The order appealed from is affirmed as to the second alleged cause of action and is reversed in all other respects, and the cause.is remanded with direction to enter an order as indicated in the opinion.