160 Minn. 162 | Minn. | 1924
The appeal is from an order denying defendant’s motion in the alternative for judgment non obstante or a new trial, after verdict for plaintiff.
The action is by the father in behalf of his son, Paul, a minor, to recover for injuries sustained by Paul when a manlift in defendant’s grain elevator at Sanborn, North Dakota, fell with him. The recovery was based on the theory that the lift was an attractive and dangerous plaything for children and also that defendant’s manager, Ferhagen, in charge of the elevator, negligently permitted children to operate the same, knowing it to be dangerous and out of repair.
Paul was 13 years and 4J months old when the accident happened. A boy 2 years younger lived with Ferhagen and at times assisted him with work. Of course, his presence drew other boys to the elevator, among them Paul and his younger brother. On the day in question the Ferhagen boy, Paul, and his brother had met, and when near the elevator started running towards it. Paul, in the lead, ran into the elevator, jumped on the lift and started it. His weight being light, the lift went up with such speed that it struck the bumper at the top with such force that the large rope attached to the counterweight broke, and, the .safety device above mentioned being out of repair, the lift fell. In the fall Paul was injured. As to the above facts there is no dispute.
The jury could also find from the evidence that defendant’s manager, Ferhagen, knew that the boys frequently used the lift in play; that he knew it was extremely dangerous for them to do so; and that, nevertheless, he did not object to such use, provided no teams were in the driveway to be frightened. In fact, Paul testified that Ferhagen sent him up once to oil some bearings at the top of the elevator, and we do not find that fact denied. To be sure, there is testimony from Ferhagen that the only two or three times he found the boys tampering with the lift he told them not to do so or they would be hurt, but this did not conclude the jury, even though it seems to us the inference from the boys’ testimony is quite strong that they knew the lift was forbidden them.
Error is assigned because the court permitted the reception of evidence relating to the construction and condition of the lift and its safety appliances before the introduction of proof tending to show defendant’s responsibility towards the injured boy. This was a mere matter of order of proof and within the discretion of the trial court. There was no impropriety in showing that Paul had done some little work in the elevator 3 or 4 weeks previous to the accident. Nor was there error in refusing to strike out, as not within the issues, the testimony of Paul that his purpose
The next contention argued by defendant is that it was entitled to a directed verdict in its favor. We need not consider the refusal to dismiss the case when plaintiff rested, because that ruling should not result in a reversal, if there was no error in denying the motion for a directed verdict. Defendant maintains that the doctrine of the “turntable cases” does not carry the instant case to the jury. It is said the lift was in a building and not in the open to attract children as in Keffe v. Milwaukee & St. Paul Ry. Co. 21 Minn. 207, 18 Am. St. 393; Twist v. Winona & St. Peter R. Co. 39 Minn. 164, 39 N. W. 402, 12 Am. St. 626; O’Malley v. St. Paul, M. & M. Ry. Co. 43 Minn. 289, 45 N. W. 440; Berg v. B. B. Fuel Co. 122 Minn. 323, 142 N. W. 321.
Had this lift stood in the open adjacent to a street there could be no question as to its being an attractive and dangerous nuisance to children. But the jury were justified in finding that its location in this elevator, adjacent to a driveway generally open, was as accessible to the playmates of the Ferhagen boy as if it had stood outside. While the doctrine of the turntable cases is specially applicable where the attractive nuisances and dangerous appliances are upon public streets, as stated in Znidersich v. Minnesota Utilities Co. 155 Minn. 293, 193 N. W. 449, it does not necessarily depend upon whether the dangerous instrumentality is kept in a building or outside, but rather upon its attractiveness and easy accessibility to children. The main basis for a recovery here under the turnable doctrine was the negligence the jury could find in permitting the boys to make use of this admittedly dangerous lift. It was that conduct which made it as free and accessible to the boys as if it had stood in the street, and not any requirement that where it was it should have been so fastened that boys could not start it. In a business where machines or other mechanical appliances are operated, it is not feasible to keep them under lock and key. We
It is urged that Paul was guilty of contributory negligence as a matter of law, and defendant should have judgment. We think this was a jury question. The jury were charged that if Paul was a trespasser there could be no recovery, nor if he ventured upon the lift in spite of a warning not to do so, nor if he was a mere licensee, but only in case he used the lift with the permission, consent or at the invitation of defendant’s manager, and then only if defendant failed to use ordinary care to keep the lift in a reasonably safe condition. So, under the manner in which the case was submitted, the question of contributory negligence could not arise unless the jury found that Paul had the right by permission or implied invitation to operate the lift. Of course, if he was rightfully attempting to use the lift, it was properly left to the jury to say whether or not he did so with due care, considering his age and experience.
It is also asserted that the court erred in submitting the case as indicated in the preceding paragraph, and not on the turntable doctrine exclusively, as not within the pleadings. The complaint directly alleges that defendant negligently maintained the lift without safety appliances, and with knowledge that Paul was incompetent to operate the same, wrongfully and negligently permitted him to do so. The pleading embraced the issues submitted, and the tenth request was properly refused.
Defendant moved to strike all evidence as to the lift being an attractive nuisance, after Paul testified that he had no recollection
An instruction was requested that if the jury “find as a fact that the boy went to the elevator to collect money claimed to be due him, you are instructed that he was then strictly confined to the scope of his license to be on the premises for that purpose and your verdict must be for defendant as he had no right to step aside and use the manlift.” The requested instruction ignores the “turntable” theory altogether, and also the pleading and proof in respect to an implied invitation to use the lift. We discover no error in the refusal to give other instructions asked.
The order is affirmed.