131 Iowa 336 | Iowa | 1906
■ Defendant’s power house is located in a portion of the city of Cedar Papids devoted almost exclusively to railroad and manufacturing purposes. At the rear of the plant and across the alley from it is an arm of a small, shallow lake, the shore of which has been filled out by defendant by the deposit of cinders taken from its boiler room. Men and boys have been in the habit for many years of fishing along the bank of this arm of the lake, and workmen and others have been accustomed to pass and repass along the shore to such extent-as to wear tracks in the cinders. The blow-off pipe from defendant’s boilers is extended under the alley and under the cinders forming the lake bank at this place, and has its opening near the water’s edge. Plaintiff, a boy of twelve years of age, with a companion of the same age, while engaged in fishing, was struck in the back by a blast of steam from this blow-off pipe and was severely injured, and this suit is to recover damages for such injury. The principal complaint on the part of appellant is that the court failed to instruct the jury with reference to an issue as to whether plaintiff was a trespasser. We find no evi-
However this may be, the court submitted the case to the jury on the theory that if they found defendant, through its agents and employes knew that men and boys were frequently, during the fishing season, engaged in fishing at the rear of the works and in the vicinity of the place where the blow-off pipe of defendant discharged, and knew that such persons were likely to be in the vicinity of the end of the pipe at any time during the day, and,' notwithstanding such knowledge, without warning violently blew off the steam from its boilers through such pipe thereby injuring the plaintiff, and that this act of blowing off steam without warning was in wanton disregard of the safety of persons whom the defendant had reason to believe might be in the vicinity of the end of said pipe and be injured by reason of such discharge of steam, then they were to determine whether or not the defendant was negligent in causing the discharge of steam which injured the plaintiff without giving him warning. No objection is made to this instruction, and we think that it eliminates any question as to whether or not plaintiff was technically a trespasser, for even as to trespassers the defendant was charged with the duty of not wantonly disregarding their safety if it had reason to believe that they would be placed in danger by any action on its part. Kinch
necessary that there be a design or intention to do injury. Jacksonville S. E. R. Co. v. Southworth 135 Ill. 250 (25 N. E. 1093); Redington v. Pacific Postal Tel. & C. Co., 107 Cal. 317 (40 Pac. 432, 48 Am. St. Rep. 132.)
What we have said substantially disposes of all the errors assigned as to the admission or exclusion of testimony and as to the refusal of instructions asked.
Finding no error in the record, the judgment is affirmed.