150 Iowa 465 | Iowa | 1911
The facts which are not seriously in dispute, may be stated as follows: The defendant operates an electric railway through the city of Boone. At or near its station in that city and by the side of one of its tracks the company maintains or uses a storage house or building, the roof of which is about on a level with the roof of an ordinary box car standing on the adjacent track. At the height of four feet above the top of this building there are strung some of the company’s electric wires which do not appear to have been protected by insulation. The injury of which plaintiff complains occurred May 22, 1909. He was then a lad of twelve years and three months. On the evening in question a box car was standing near the storage building, and plain
Giving plaintiff the benefit of the most favorable construction' which can be placed upon the testimony, we are compelled to hold that he failed to make a case upon which a verdict in his favor could be sustained. It is true that the courts of the several states' are -arrayed in apparently irreconcilable conflict upon the question how far, if at all, the ancient doctrine which exonerates a property owner from the duty of considering or caring for the safety of a trespasser upon his premises is applicable where the injured person is a young child who has been attracted to the place of danger by conditions and circumstances created or permitted by the owner, and especially where the owner knows, or as a reasonable person ought to apprehend, the danger of resultant injury to children too young and inexperienced to understand the fact or meaning of trespass or to exercise judgment or care for their own safety. This court has definitely committed itself to the doctrine first clearly affirmed in this country by Dillon, J., in Stout v. Railroad Co., 2 Dill. 294 (Fed. Cas. No. 13,504), and affirmed on appeal in 17 Wall. 657, (21 L.
To say that á property owner must guard against such injury.to a trespassing boy simply because it is possible for him in a venturesome spirit to climb into the zone of danger would-be intolerable. In every dooryard and on every street side are shade and ornamental trees. To climb trees is as natural to the average boy as to a squirrel. Such sport is always attended with danger that the climber may lose his hold or break a branch and fall to his severe injury. Not infrequently, it may bring him to an elevation-.where -he is .exposed..to .contact with wires- carrying electric; currents' cíf' gfeáter or loss intensity. If he' falls
As the plaintiff’s own case reveals him as a conscious trespasser upon defendant’s premises, and there is an utter absence of testimony that defendant kept or maintained anything on the roof of its building to attract or draw children thereto, or that if any manner encouraged, invited, or permitted such use of the roof, he was not entitled to go to the jury, and the court did not err in directing a verdict against him. The same -result would have to be reached on the ground of contributory negligence had there been anything in the record tending to show negligence on the part of the defendant. — Affirmed.