165 Iowa 473 | Iowa | 1914
Although this action is brought for and on behalf of a minor, by his next friend, we shall for convenience, call the injured party “plaintiff.” The facts stated most strongly for plaintiff, as they should be on this appeal, are as follows: The defendant, the Iowa Telephone Company, having for the purposes of this case the right to occupy the streets of the city of Des Moines, was on the 23d day of February, 1912, engaged in stringing large lead cables or conduits to the cross-arms of telephone poles on College avenue, in said city. At the time of the accident in question, it was at work stringing these cables within a block of what is known as the Henry Sabin public school and kindergarten, which large numbers of small children attended. Plaintiff was one of the attendants at this school, and at the tinie he received his injuries was seven years of age.
The attached photo shows the situation and is a correct representation of the snatch block in question.
The pulley was within but a few feet of the sidewalk, and also close to the alley, as shown in the photo. At the close of school which plaintiff was attending, he, with several of his schoolmates, started for his home, and passed along the sidewalk on the south side of College avenue until they came to the snatch block, and observing it in motion, and that the team was being driven to raise the cable into position, they stopped, and several of the children, including plaintiff, stepped onto the parking and caught hold of the rope as it passed into the pulley, for the purpose of ‘ ‘ helping the horses pull.” Plaintiff had hold of the rope nearest the pulley, and at that particular moment the rope suddenly jerked, and plaintiff’s hands were both drawn into the pulley. The two middle fingers of his right hand were pulled out, and with them the tendons running up into the forearm, and both hands were badly cut, bruised, and injured. It also appears that another group of children passed by this appliance shortly before the one of which plaintiff was a part, reached there, and one of defendant’s employees testified as follows regarding what happened at that time:
When we first stopped after starting up from the second hitch, there were some children on the street. They were along on the sidewalk and parking, playing along there, coming home from school. It would be hard for me to say how many there were of them. I don’t know just the number. There were perhaps about a dozen, or something like.that. With reference to the pulley, they were scattered along all the way from the kindergarten. Here by the pole where the pulley was, some of them came near the rope. They were dancing out on the parking, some jumping up and touching the rope with their hands occasionally. That was while we were standing there after this first stop, a couple of boys jumped up and touched the rope, and I said: ‘Get away; you are liable to get hurt. Don’t be bothering that rope.’
At the time plaintiff received his injuries there were no men within a half a block of the group of children to which he belonged, and a jury w.as justified in finding that no warning was given to the group to which plaintiff belonged. The negligence charged in the petition was as follows:
(1) The defendant corporation was negligent in that it used and operated a dangerous instrumentality, calculated to excite the curiosity and invite the attention of small children in a public street in the city of Des Moines, at a place where small children at said time were apt to be, of all of which the officers and agents of defendant corporation knew, or by the exercise of ordinary care should have known.
(2) The defendant corporation was further negligént in operating said instrumentality on a public street, in a manner and at a place where the same was within easy reach of children, without having any employee or person near at hand to give warning to small children of the danger thereof, or to prevent them from taking hold of said rope or pulley.
(3) The defendant corporation was further negligent in that it did not fasten said pulley to said telephone pole at a sufficient height from the ground so that small children, on being attracted thereto by said moving rope and pulley,
(4) The defendant corporation was further negligent in that it was engaged in using an apparatus upon a public street, at a place where small children were and were apt constantly to be, of a character likely to excite the curiosity and attract the attention thereof and cause said children to take hold of said rope and pulley when in motion, but without providing any barricade about said apparatus, or stationing any servant or employee nearabouts to warn said children and prevent them from touching or taking hold of said rope or pulley, as without said barricade or warning they were likely to and did do.
Defendant denied all negligence, and further pleaded contributory negligence on the part of the plaintiff. The trial court gave the following instructions on the subject of defendant’s negligence:
It is for the jury to determine whether or not the defendant was negligent, as charged by the plaintiff. The negligence charged against the defendant in this case may be stated thus: That at the time and place of the accident, at a time and place where little children were apt to be, the defendant was using an apparatus, dangerous in character, and of a nature likely to excite the curiosity and attract little children to play with, or interfere with, such apparatus; that defendant knew, or in the exercise of ordinary care should have knowm, that children wrere apt to be at that place at that time; that the defendant knew, or in the exercise of ordinary care should have known, that said apparatus was dangerous in character, and of a nature likely to excite the curiosity and attract little children to play with, or interfere with, such apparatus; that in such use of such apparatus the defendant did not exercise such care to guard against injury to such children as an ordinarily careful and prudent person would exercise under the circumstances. If that charge has been proven, by a preponderance of the evidence, you would be warranted in finding defendant was negligent, and you may consider as hereinafter instructed. If it has not been so proven, you will consider no further, but return your ver-' diet for the defendant. That an accident may have hap
Proper definitions of negligence in the abstract were given, and the instructions also properly submitted the question of contributory negligence. At the close of the testimony, defendant filed a motion for a directed verdict, which was overruled, .and it also asked instructions to the effect that no actionable negligence was shown and that a verdict should be returned for it, and these were each and all refused. It also asked the following instructions, which were either refused or modified in the court’s charge, or given in substance as requested:
The defendant company, at the time of the accident, had the lawful right to use the street upon which its employees were working in placing the cable upon the telephone poles, and had the lawful right to use the tackle, apparatus, and machinery which were necessary for the accomplishment of said purpose. Having such right, no person using the street at said time and place, and no passerby, whether child or adult, had the lawful right to interfere with tbe tackle, apparatus, or machinery then in use by the defendant company, and if the plaintiff did, while said defendant was so lawfully engaged in the work then at hand, take hold of the rope used by the defendant in said work, and by reason thereof his hand was caught in said pulley, he was, as to the defendant, a trespasser. If you find from the evidence that the defendant, in its work of placing the cable upon its telephone poles along
A comparison of the instructions given with those asked clearly indicates the difference between counsel as to the main proposition of law in the case. True, counsel for appellant strenuously insist that the plaintiff was guilty of contributory negligence as a matter of law.
It is true that in a sense the boy was a trespasser in taking hold of the rope, which he said he did to aid the horses in pulling; but this in itself is not sufficient to defeat the action. If defendant was at fault in operating such an appliance without any warning, barricade, or guard, because it was of such a nature as to attract young children which it knew were passing that particular point, and if in fact it knew, as the testimony tends to show, that young children, rightly upon the street, were in fact attracted by the apparatus, and through curiosity or otherwise were led to take hold of the ropes, or to play with the pulley, the doctrine of there being no duty to trespassers does not apply in full force, if at all. The attractive character of the appliance, the fact that it did, just before the accident, attract other children, the fact that the defendant’s employees did warn other children away, and then, although with knowledge that many other children were passing along the street on their way home from school, left the place unguarded, went half a block away, and gave the matter no further attention, creates
The attractive character of the appliance was such, as some of the cases put it, as to create an implied invitation to the children to use or put their hands upon it. Or, as other cases put it, the negligence of the defendant was the primary and proximate cause of the injury, and the trespass the secondary or remote cause, and in either event, if defendant was negligent, the technical trespass of the child does not defeat recovery.
While defendant had the right to use the street and the appliances that it did, it was bound in law to the exercise of ordinary and usual care in the handling thereof, and what amounts to such care is generally a jury question. What it might do in the country and along public highways does not necessarily give it license to do the same at or near a schoolhouse, where children are likely to be passing in numbers at certain hours of the day. It might, as we understand it, have attached the snatch block so high that children could not have reached it. It might, during the time children were due to pass, have stationed guards to keep them away from the dangerous pulley. It might also have erected a barricade around the pulley so as to have kept children away from it. It was a mere licensee upon the street, having no absolute right thereon, and was bound to so use its privilege as not to harm others who had the same rights there which it had; and it was also bound to take into account the known habits and customs of children and of their propensities to play with or put their hands upon the appliance. All, these things, as a reasonable and prudent person, it was bound to take into account.
A very potent and significant fact in the case is that defendant’s employees were actually warned, but a few minutes
It seems to us, when it is once conceded that defendant was a mere licensee upon the street, that children had an equal right thereon, and that defendant knew of the attractiveness of the appliance, from actual experience, that the case is very much stronger than the so-called “turntable” eases, which we have followed and approved as a rule for this state. See Edington v. Railroad, 116 Iowa, 410; Fishburn v. Railroad Co., 127 Iowa, 483. It is not like those cases relied upon by the appellant, where the defendant was in the use of its own appliances upon its own premises, to which it had an absolute right, and was not advised that children might be attracted by some piece of machinery or some appliance, as in Hart v. Brick Co., 154 Iowa, 741; Wood v. Ind. Dist., 44 Iowa, 27; Brown v. Canning Co., 132 Iowa, 631; Anderson v. Railroad, 150 Iowa, 465; Cavanaugh v. Coal Co., 131 Iowa, 700; and other like cases relied upon by appellant.
The Supreme Court of Wisconsin had this exact question before it in Kelly v. Wisconsin R. R., 152 Wis. 328 (140 N. W. 60, 44 L. R. A. (N. S.) 487), and Justice Marshall, in writing the opinion, said:
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 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 that they may probably so interfere, to their 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 violations of duty is no defense in
See, also, to the same effect, Ferrell v. Cotton Mills, 157 N. C. 528 (73 S. E. 142, 37 L. R. A. (N. S.) 64); Haynes v. Seattle, 69 Wash. 419 (125 Pae. 147); O’Leary v. Telephone Co., 146 Mich. 243 (109 N. W. 434).
From the latter ease we quote the following:
The plaintiff was in the public highway, where he had as much right to be as defendant’s employees, and, while his laying his hand upon the cable was technically a trespass, it was no more so than taking the explosive cap- from the box, in the case of Powers v. Harlow, 53 Mich. 507 (19 N. W. 257, 51 Am. Rep. 154). Plaintiff’s mere technical trespass did not set in motion, as in the cases cited, the agencies which
Whilst the case is close in its facts, and may be said to be on the border line, we think the weight of authority, especially of the recent cases, and the application of what are now regarded as well-settled principles, calls for an affirmance of the judgment.
It is therefore — Affirmed.