Kressine v. Janesville Traction Co.

Owen, J. In recognition of the fact that children will play in a public street, this court has held that one may not maintain therein an implement, machine, or structure attractive to children without taking due care to prevent injury resulting to them by reason of natural childish interferences therewith. Busse v. Rogers, 120 Wis. 443, 98 N. W. 219; Harris v. Eastern Wis. R. & L. Co. 152 Wis. 627, 140 N. W. 288; Kelly v. Southern Wis. R. Co. 152 Wis. 328, 140 N. W. 60; Webster v. Corcoran Brothers Co. 156 Wis. 576, 146 N. W. 815. The duty thus cast upon him who placés or maintains such an implement, machine, or structure in [196] the street is founded upon considerations of humanity rather than any legal relations existing between him who maintains the dangerous apparatus and the children who may come in contact therewith. It follows naturally from a recognition of the fact that children of tender age have not acquired an appreciation of the impropriety of meddling with other people’s property nor the dangers lurking in the complicated machine. The all-wise Providence has implanted in the child a curiosity which can be satisfied only by feeling and .handling new and strange objects. . This is a trait which frequently tries the patience of adults, but it is an instinct ordained by nature and cannot be changed by man. In fixing a standard of human conduct involving the safety of children this trait cannot be ignored. Children are all about us wherever we. go and whatever we do, especially if it be in the public street. That their presence in the public street is not only an aggravation to adults but dangerous to their safety, all will concede. But that they will be in the public streets at inopportune times and places is a fact that cannot be ignored. From these considerations this court has laid down the rule that “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 be allured thereinto.” Webster v. Corcoran Brothers Co. 156 Wis. 576, 146 N. W. 815; Kelly v. Southern Wis. R. Co. 152 Wis. 328, 140 N. W. 60. The defendant had a lawful right to leave the street car here in question standing on the track in the street as it did. It was hnquestionably chargeable with knowledge of the fact that children were' continuously playing in the street, around and about the street car, and that the car. Was a most alluring object to the children of that neighborhood. This laid upon the defendant a duty to render its presence harmless to the ordinary childish interferences therewith in the [197] nature of original research and investigation. The jury found that the defendant company failed in its duty in this respect. This finding is challenged as being contrary to the evidence, and we are to determine whether the conduct of the defendant fulfilled its obligations in this respect as a matter of law. That the probability of childish interference with the car was appreciated and a bona fide effort made to render it innocuous to probable childish incursion is manifest. The employees who had charge of the car testified that the following things were done to render it inanimate and irre-sponsive to any childish intermeddling therewith: first, the trolley pole was tied down to the top of the.car; second, the switch at either end of the car was turned, thus breaking for a second time the electric current; third, the brakes were set; fourth, the controller, a crank-shaped device which regulates the flow of electric current when in the hands of the motorman, was taken away; and fifth, the doors were locked. That they did all these things there is no direct testimony to dispute. But it is contended that the testimony in this behalf was either so shaken upon cross-examination, or made improbable by other circumstances in the case, that the jury had a right to disbelieve that the doors were locked or that the switch at the end of the car had been turned. Granting this contention, it remains conceded by every witness in the case that the trolley pole was tied down to the top of the car and there is no reason whatever to doubt that the controller wa.s taken away. It is a verity in the case, then, that the trolley pole was disconnected from the electric over-head wire and securely tied down to the top of the car. and the controller taken away. Without contact by the trolley pole with the electric over-head wire the street car was an inert object. The controller was generally regarded as an indispensable instrument for the setting of the car in motion. With these facts in mind, the question is whether, in tre-ing down the trolley pole and removing the controller, the [198] company was in the exercise of due care for the safety of children who might be playing thereabouts. The care required under such circumstances is reasonable care. It is the care that men of ordinary prudence would exercise under the same or similar circumstances. The dangers which it was the duty of the company to guard against were such as reasonably might have been anticipated. It was not an insurer of the safety of the children. It was not the duty of the company, as we view it, to so dismantle or disem-power the car as to render it harmless under every conceivable circumstance. It was charged with knowledge of ordinary childish conduct, and it was bound to anticipate consequences resulting from such conduct. It was not bound to anticipate consequences resulting from the unusual or extraordinary conduct or the precocious ingenuity displayed by this particular crowd of boys. In considering a similar situation the Minnesota court said: “We do' not mean to intimate, in respect to the matter of fastenings in á case like this, that they must be such as to render it impossible for children to remove them, nor that the fact that in the particular case they were removed by such children necessarily malees a case of negligence. But they ought to be such (we are speaking of cases where very young children, to the knowledge of the defendant, have ready access to, and may be attracted by, turntables and car-wheels standing on the tracks) that an ordinarily prudent person would deem them sufficient to render it improbable that children, within the rule, would remove them.” O’Malley v. St. P., M. & M. R. Co. 43 Minn. 289, 45 N. W. 440. We think this language quite clearly and correctly states the degree of care required under the circumstances here, and it seems to us that the conduct of the defendant responded fully to that standard. In the first place, it should hardly be required to anticipate that boys of eight or nine years of age would crawl on top of the street car and untie the trolley pole so that it might be placed in contact with the [199] electric wire; but even should it be held to such an anticipation, certainly it could not be held to anticipate that these boys would seize upon an implement never used for. that purpose and make it serve as a controller. To hold the defendant responsible for the plaintiff’s damage is to require it to be an insurer of the safety of children in and about its cars under all ciixumstances, and would well-nigh lay upon it the duty of placing a guard at a car when left standing on a street. We do not think the defendant’s negligence was a jury question. Its conduct responded to the degree of care required by it under the circumstances. It follows that the judgment should be reversed, and the cause remanded with instructions to dismiss plaintiff’s complaint. By the Court. — So ordered.