Kelly v. Southern Wisconsin Railway Co.

140 N.W. 60, 152 Wis. 328, 1913 Wisc. LEXIS 74

• Court: Wisconsin Supreme Court
• Decided: February 18, 1913
• Status: Published

Opinion

MaRshall, J.

Did defendant breach a duty to exercise ordinary care for the safety of children who were liable to b'e in the street in the vicinity of its rope; having regard for danger of their interfering with the appliance ?

The trial court, in contemplation of supposed legal principles, decided there was reasonable ground in the evidence to find in respondent’s favor, and, so, sent the matter to the jury. Acting under the judicial suggestion, the jury took the subject as involving questions of fact, determinable from controverted reasonable inferences arising from the evidence, .and resolved tbe uncertainty in favor of respondent. Tbe result was challenged as contrary to tbe evidence, on tbe motion for a new trial, and tbe decision was against appellant. •So tbe error now assigned, tbat there is no reasonable support in tbe evidence for tbe verdict, is opposed by tbe judgment •of tbe jury and tbat of tbe trial court both before and after verdict. Eor success thereof a strong case is required,— much stronger than is presented here if tbe law' applicable thereto is as tbe trial judge supposed. Tbe force of tbe argument of counsel for appellant is substantially all directed from an angle far different, from a legal standpoint, than tbe one from which tbe court below observed tbe situation. If tbe latter be right, tbe judgment must be affirmed. If tbe former be right, it must be reversed.

Counsel ground their faith, in tbe main, upon want of •duty to respondent, — tbat appellant followed tbe custom as to tbe kind of appliance, and, therefore, as matter of course, there was no failure to exercise ordinary care. Does that ■satisfy tbe situation ? Tbe difficulty is in tbe evidence, substantially, stopping with tbe one circumstance tbat tbe appliance was tbe usual one and tbat no accident bad previously •occurred. This, by tbe foreman, is a fair sample: Tbe method of stringing tbe wire was tbe same I have used for years. Other companies string tbe same way, — the same kind of a pulley with a rope and team being used. Tbe telephone companies use tbe same kind of a contrivance. We bad one man at tbe street crossing to give signals to men at tbe spool and one driving tbe team. Tbe man at tbe crossing bad to watch tbe snatch block and tbe feeder as it came along because of teams and people walking back and forth across tbe street. I have never known of children playing with tbe rope or of any accident. There was no watching to keep ■children away from tbe pulley and rope. Tbe man at tbe crossing was to see tbat teams bad opportunity to pass and watch everything, and guard to see tbat everything was all right and that no one was near the line where it came neai* the ground. The men did not hare any instructions to keep children away from the rope.

That may all be. It makes a pretty clear case as regards danger to persons using the appliance; but the complaint is not of the character of the appliance or the means or manner of its location, but of no efficient attention being paid to keeping children from interfering with the rope near the pulley, notwithstanding it was dangerous to do so, and the location and circumstances were such that defendant’s employees were chargeable with knowledge that children were liable to be lawfully in the street in the zone of danger and be attracted into it. It was one thing to use a proper appliance and to see that it operated right as regards the work being done and to see that, when the rope interfered with travel at the street crossing, teams and pedestrians were permitted to pass. It was quite another thing to exercise efficient care to guard against children being injured by interfering with the rope and pulley at the point of danger, some hundreds of feet from the spool and the man at the street crossing, in view of the fact, if it be a fact, that appellant had reasonable ground ■ to apprehend that such care was necessary. Failure in that field is the real ground of negligence pleaded and to which the evidence on the part of respondent was directed, and which was submitted to the jury. Thus we see the evidence appellant’s counsel relies upon does not reach the real situation. The manner employed, from a mechanical standpoint, in doing the work may have been all right, but how about the means employed to guard against children lawfully in the street being injured in the progress of the work? That is the question, if we pass the point in favor of respondent as to whether, in the exercise of ordinary care, such means were required, and on that question the direct evidence on the part of appellant is silent, except in the statement of the foreman that he had never known of an accident happening by reason of children playing with the rope. The defense seems to have been upon the theory that appellant had a right to be in the street with a proper appliance for doing its work, properly operated as regards public travel, and that it had no duty to perform as regards children, who, being lawfully in the street for its ordinary use, might step aside and interfere with the rope, as was done in this case. No one was instructed to look after that matter. The jury were warranted in believing that such matter was not thought to be any concern of appellant’s. Counsel'argue the case here from that standpoint. Is that consistent with the true measure of what appellant’s duty was under the circumstances ? If not, then the whole theory of the .defense at this point fails.

In the further consideration of the case, we may safely say, without demonstrating it by quotations from the evidence, there was reasonable ground to conclude that appellant’s operations were in a locality where children were liable to lawfully be at any time, — children so young as not to be able to appreciate the danger of interfering with the moving rope in the immediate vicinity of the pulley; that such danger, in fact, existed and that such interferences were within reasonable probabilities. The fact that no accident had previously occurred, so far as defendant knew, is not conclusive. That young children are very liable to meddle with things as plaintiff did, is of common knowledge. That in doing so there is probability of injury, needs no evidence from the mouths of witnesses.

If appellant did not owe any duty to children in the circumstances here; if they, though too young to appreciate the danger and the wrong of their trifling with the ropes, were entirely at their own risk of loss by doing so, then the whole theory of respondent’s case is wrong. Many cases are cited to our attention as bearing on the question; but, all go either upon the theory that defendant did not owe any duty to the injured person under any circumstances, or that the operations or conditions causing the injury were not dangerous, or, if dangerous, in case of interference therewith by children, that the apparatus was not such as would, naturally, allure children to play with it. Such cited adjudications of the first class are out of harmony with and contrary to established principles, as frequently applied in this court, and need not be referred to. The logic of the other authorities relied upon is well illustrated by Fitzgerald v. Rodgers, 58 App. Div. 298, 68 N. Y. Supp. 946, quoted from at length by counsel for appellant, where it was held that there was no liability because the machine was not dangerous in itself. It did not of itself constitute an unlawful obstruction in the highway. It was not of such character that it was dangerous and a temptation or enticement to children to play with it with probability of receiving personal injuries. But the two elements said to be absent in that case and so to relieve the defendant from the charge of liability, are claimed to have been present in this case and were so found to be by the jury, confirmed by the circuit judge.

Mere cases do not create principles. They apply principles to situations fairly within them. Courts do not often differ as regards principles, but do as regards what particular circumstances are essential to render them applicable. In that lies the danger of tying too closely to cases instead of using them, merely, by way of illustration. One may take the former method, descending to the details of discussion in opinions, and easily go astray, or fall into confusion, while, by taking the latter, the mists will disappear.

The principle involved here, so far as the precise facts go, keeping prominent that the child was where it had a right to be, — the principle recognized in most of the authorities cited to our attention and illustrated time and again in our own decisions, — is this: He who maintains an object or condition liable to attract children of tender years to interfere therewith, under such circumstances as to be chargeable with knowledge tbat they may probably so interfere, to tbeir personal injury, breaches his duty as to ordinary care not to imperil their safety.

Keeping the principle in mind, one can easily see that customary violation of duty is no defense in any particular instance. Numerous authorities are to the effect that places do not, necessarily, fall outside the principle because of the children in going there becoming trespassers. By common knowledge very young children are liable to trespass and be wholly ignorant of wrongdoing, or substantially so. Is there not a duty owing to such children as to such situations, — a duty, even within the broad lines' of the principle stated,— though they be wrongdoers, which may be actionably breached, and especially so in case of their being where they have a right to be, as in this case \ The common instincts of mankind suggest that. Sound policy would seem to demand it and the courts in general, and this court in particular as to situations analogous to the one in hand, uphold it. .

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 or maintaining a condition involving any such, with reasonable ground for apprehending that children of tender years may probably he allured thereinto. In many courts that has been applied generally,— to private premises where children have no right to be and to public places and those visited by license,’ as well, — while other courts restrict it to the rightful visitations. This court, perhaps, has not taken a decided stand on the broad lines indicated, though the writer is of the opinion that it has, in logical effect, and would assert it and defend it as sound doctrine, demanded by precedent, principle, and humanity. One of the most striking illustrations of such broad application in foreign jurisdictions is Birge v. Gardner, 19 Conn. 507. A person, insecurely, set a gate on his own premises beside a lane through which children were liable to pass. One while doing so, took bold of and shook the gate, causing it to fall and break bis leg. Such person was held liable. Bransom’s Adm’r v. Labrot, 81 Ky. 638, is another. In the latter these were the facts: A person piled lumber on his unfenced lot so timbers were liable to fall and injure any one within range. He had reasonable ground for knowing children might play in the vicinity. That occurred. A timber fell causing a child’s death. The owner was held liable.

There are numerous instances where the principle under discussion was applied, that one must, in the exercise of ordinary care, be sensible of common childish instincts and not create or maintain, even on his own premises, a condition which he knows, or has reasonable ground to apprehend, may, probably, allure innocents into danger, notwithstanding one would, technically, trespass in reaching the peril. As indicated, whether that should be applied generally, or only to premises where children may rightfully be, is where courts have divided. The following cases indicate the trend in this court: Busse v. Rogers, 120 Wis. 443, 98 N. W. 219; Compty v. C. H. Starke D. & D. Co. 129 Wis. 622, 109 N. W. 650; Lomoe v. Superior W., L. & P. Co. 147 Wis. 5, 132 N. W. 623; Secard v. Rhinelander L. Co. 147 Wis. 614, 133 N. W. 45; Meyer v. Menominee & M. L. & T. Co. 151 Wis. 279, 138 N. W. 1008. The conflict of authority I have indicated was referred to in Busse v. Rogers, but the court contented itself with applying the principle to such situations as the one in hand, not expressing doubt, however, as to whether it might be applied more broadly.

It should be particularly noted that the fact of the child using the street as a playground was not thought to remove it from the zone of duty as regards its personal safety. Children have, as it is said, a subservient right to play in the street and their safety in doing so must not be imperiled by any act of a person which he has reasonable ground to expect may probably do so, even though the danger be only rendered active through infantile curiosity or instinct for play, — a stepping aside from tbe primary use of tbe way and tbns arousing tbe dormant danger, as in Secard v. Rhinelander L. Co., supra, where tbe child while playing with an excavation lawfully made in tbe street, by caving of the earth was killed.

We need not pursue tbe subject above discussed further. Tbe main contentions that defendant was not negligent because it was lawfully in tbe street, using tbe ordinary appliances in doing its work, and that respondent trespassed upon its property in taking bold of tbe rope, are unsound. They do not recognize tbe principle regarding tbe duty to children of tender years, nor that infantile transgressions under such circumstances as we have here, do not make a child an outlaw without tbe protection which tbe humanity of tbe law commonly throws around child life.

Tbe jury found all tbe facts in respondent’s favor essential to liability under tbe principles of legal responsibility indicated. Looking at tbe circumstantial as well as tbe direct evidence, we are unable, under tbe rule as to tbe weight of a jury finding, confirmed by tbe trial judge, to say that there was no legitimate basis for sending tbe questions respecting tbe facts to tbe jury. So there stand these verities: Appellant created a condition liable to cause personal injury to children of tender years, if they interfered with tbe rope, as plaintiff did. It knew children were liable, at any time, to be within reach of tbe danger. It bad reasonable ground to suppose that tbe moving rope would allure such children into playing with tbe rope and so enter tbe zone of danger. It gave no directions to its employees, and they did not exercise any oversight, in respect to tbe matter. As before suggested, if it be true that tbe safety of children is customarily unthought of, as in this case, in tbe same or similar circumstances, ?ind it is considered tbe evidence hardly goes that far, especially, not conclusively, then such work under such eir-eumstances is customarily done without proper regard for young children who are liable to be lawfully playing in the street. The way a thing is customarily done is evidence on the question of whether ordinary care was used in a particular instance and may be conclusive, but when such manner is obviously dangerous, as by wholly neglecting to give thought for the safety of children, playing in the street where they may be allured into danger created by an outside agency, as in this case, it is not a proper one merely because it is a customary method. Douglas v. C., M. & St. P. R. Co. 100 Wis. 405, 76 N. W. 356; Innes v. Milwaukee, 96 Wis. 170, 70 N. W. 1064; Jensen v. Wis. Cent. R. Co. 145 Wis. 326, 128 N. W. 982.

What has been said efficiently answers the contention that respondent was guilty of contributory negligence, since the mere fact that plaintiff violated the rights of appellant by meddling with the rope did not -render him necessarily, efficiently a trespasser. A child might be technically such, as we have seen, and yet be in the exercise of the care reasonably to be expected of children of his age under the same or similar circumstances. On the whole, we are unable to come to the conclusion that the trial court was wrong in submitting the matter to the jury.

Complaint is made because the court permitted respondent’s counsel to interrogate plaintiff’s father with reference to his pecuniary circumstances. The only excuse for that seems to be that appellant’s counsel first opened up the subject without the questions being objected to. When that was followed by questions on the part of respondent’s counsel which were objected to the objection should have been promptly sustained. The pecuniary circumstances of plaintiff’s father had nothing to do with the loss he sustained by reason of appellant’s fault. The admission over objection of súfeh evidence has often been held error, but said to be one of minor character, affecting, if at all, only the measure of damages. Holdridge v. Mendenhall, 108 Wis. 1, 83 N. W. 1109. Under tbe circumstances of tbis case it does not clearly appear that had the erroneous ruling not occurred the result might probably have been more favorable to appellant, therefore, it must be regarded as nonprejudicial.

There is nothing further in the case which seems to merit special attention. The case has been carefully, it is thought, considered in all its aspects without discovering any warrant for disturbing the judgment.

By the Gourt. — Judgment affirmed.