*1 8 (1974); Abbott, Abbott v.
191 Neb. 215 N. W. 2d supra. attorney representing plain- Brennan, an J.
William of Mead at the Bank tiff, on Mr. Schuette called realize, said, that “You 4,1970. He testified he December Foxley $325,000 based Schuette, released check Mr. Holzafpel?” your upon and with Mr. conversation De- that.” answered, “Yes, I understand Mr. Schuette Having immediately objected ad- thereto. fendant ample vantage matter, we time to reflect largely meaningless and doubt admission is feel jury. helpful find opinion do not We testimony prejudicial receipt as defend- to be clearly ably by and cross-examination, counsel, ant’s nor Mr. Brennan Mr. Schuette that neither established enough facts herein uncontested aware were question. such ask and answer judgment is affirmed.
Affirmed. M. Davis, Paul Davis, Steven his father appellant cross-appellee, next friend, appellee cross-appellant. Cunningham, Ivan 241 N. W. 2d April 28, Filed 1976. No. 40258. *2 T.
Philip for Morgan, appellant. James A. Beltzer Beltzer Luebs, of Tracy, Dowding, & Leininger, for appellee.
Heard J., before White, Spencer, Boslaugh, C. JJ. McCown, Brodkey, Newton, Clinton, J. Newton,
In this action injuries for recovery personal is sought sustained by on his Davis, 3-year-old boy, a Philip M. grandfather’s farm. were for and judgment Verdict plaintiff $1,800. on the ground Plaintiff has appealed the verdict was defendant grand- and the inadequate father has cross-appealed negligence on ground does not and the appear. The is reversed cause judgment dismissed.
Defendant’s her daughter Lana, with new baby and son farm were defendant’s Philip, visiting home. Also in the farm home were Lana’s brothers and sisters, in- Julie and Matt who years age was 8. cluding Lana the three children to gave permission foi; out go sprinkler in the with the play understanding Julie would supervise and Matt Philip. Julie and Matt knew dangers potential with farm playing machinery. farm lot adjacent On the to the lawn awas machine as an referred It irrigation ditcher. was constructed small on wheels two with a at front end tongue evidently V-shaped
a It more or blade at the rear. was tongue down less on as the was balanced the two wheels ground Philip managed pull the blade but weighed portion tongue up. The ditcher down and pounds blade about in the rear or and was heavier portion. Philip’s farmer, had ob- father, a who not day sitting as it before served machine was thought nothing over, ran accident but swung of it. V-shaped blades, and on cross rod between pulled lifted the and Matt down himself. Julie injured Philip. Philip and removal machine off was necessary. kidney obviously judgment inadequate in view injuries Philip primary question is that received, but the liability liability. generally conceded injuries possessor infants is the same land for gen- trespasser. rule or not the child is whether erally 2d, Restatement, Torts followed is that found *3 p. § Estate of It in 339, 197. was followed Gubalke is as rule Anthes, N. 2d 836. Neb. 202 W. “ liability subject possessor for to is ‘A of land follows: by trespassing caused physical thereon harm to children upon land if an artificial condition the “ upon ‘(a) place is one exists the the condition where know possessor to has reason which the or knows likely trespass, to children are “ possessor ‘(b) is knows the condition one of which realizes or should or he has reason know and which of or risk death will involve an unreasonable realize bodily children, and serious harm such “ youth ‘(c) do not dis- of their the children because risk involved inter- or cover the condition realize coming meddling the area within made it or with by dangerous it, and “ possessor maintaining ‘(d) utility to the eliminating danger and the burden are condition slight compared the risk to children involved, as with ‘“(e) possessor fails exercise reasonable care to danger protect eliminate or otherwise the chil- ” dren.’ liability phases For to attach, all rule must be present. The condition must one be which involves “an bodily risk or unreasonable death serious harm” to a (Emphasis child, and one which should foreseen. be supplied.) instrumentality question
The condition or must be inherently unusually dangerous one that is or to children. supra: As was stated in Anthes, Gubalke v. Estate of question “The we must answer is whether the condition danger was one which offered an unreasonable of serious bodily injury danger to children which was rea- sonably anticipated by to be the defendants. If not, then jury question liability.” there is no and no present dealing In the we an instance are with ordi- nary, stationary, implement. and innocuous farm obviously inherently unusually dangerous is not an or object. ordinary is farm same true an tractor although may up a child it, off, fall and break climb his neck. Anthes, As was stated in v. Estate of Gubalke supra, quoting (4th Ed.), § 59, Prosser, Torts Law of “ p. upon 369: ‘The stress here “unreasonable.” There virtually upon any no condition land with which may possibly get child not into trouble. He himself up green pick apple, choke death a stick and poke eye, by it into his or have his skull fractured companion. rock found and thrown Unless possessor making impossible to shoulder burden completely “child-proof,” his land mean which razing something is called earth, bare more *4 coming general possibility than to some of somehow throughout everywhere harm which follows the child ” daily in- property not an is existence.’ “Owner of real safety persons his land surer of who come trespassers, as invitees, or is he under licensees nor 12 ”
duty ‘child-proof.’ v. Martinelli make his lawn Peters, 472, 413 Pa. A. 2d 530. Hockenberger Co., Chambers said &
We Haden v. nuisance 713, 193Neb. N. “The attractive 228 W. 2d 883: apply machinery ain condi- doctrine does not static machinery is en- tion unless there is ticing that the evidence indiscriminating inherently dangerous chil- years.” of tender dren dangerous digger that because said the ditch in the air. Children
the heavier was left tilted end many pulled sus- it down times without well have taining injury. the older matter, serious that For premises might playing tilted well have children on the tongue up up it with the other end had been left it occurred, could the heavier blade down. Had should have foreseen still be said that the defendant Foreseeability an is an essential likelihood accident? presents an situation of the rule. element Unless ordinary danger, reasonable abnormal or unusual any danger. person would sense nor foresee not an or aberration The attractive nuisance doctrine departs abnormality negligence and from in the law it is considered usual As a result rules. although application this in its not be extended should jurisdictions. stated in As in a has occurred number tendency (73), p. Negligence, § “The 810: S, C. J. at- than to extend limit rather of the courts v. Reli- See, also, Brown doctrine.” tractive nuisance Foundry, App. 344 P. 2d 2d Inc., 174 Cal. able Iron (Iowa), Appling 810; 2d Hanners N. v. 164 W. 633; Stuck Beasley City (Ky. App.), 729; 2d 331 S. W. Ashland (La. App.), 2d 774. 123So. v. Guerriero case, it is difficult this Under circumstances person foreseen would have reasonable believe danger an in- anticipated or accident to the child or Ordinarily bodily volving under such harm.” “serious injured or not be child either would circumstances nothing Neither than minor bruise. suffer worse would *5 the child’s nor grandfather father any foresaw danger to injury the child from the static ditcher.
The of the District Court judgment is reversed and the cause remanded with to directions dismiss.
Reversed and remanded with directions to dismiss. J., concurring.
Brodkey, I concur in the result in reached the majority opinion case, this the discussion therein so far as it per- tains to the of the application attractive nuisance doc- However, trine. I think it should be made clear that for liability injuries children is not restricted to the application the attractive nuisance doctrine, but may arise, also under appropriate circumstances, under or- rules of dinary is not a negligence. condition prece- liability dent the particular machine or instru- mentality involved be a dangerous instrumentality. Even a completely safe machine may be in a used negligent manner, with resulting liability tortious injuries children. J., dissenting.
Clinton, I dissent for that I respectfully the reason believe the evidence justified submission to the jury issue the defendant’s and would therefore negligence affirm jury but, finding liability, because the damage clearly award was I inadequate, would remand for a new
trial on issue of only. damages
At some of facts expense repetition contained I state majority my view as opinion, follows: The evidence shows that and his Philip parents were at the farm home the defendant. guests family visit day had their before the accident. On begun incident, day plaintiff permitted by with the play sprinkler lawn ad- parents farm residence. was at that to the time jacent aunt, of his uncle, and his charge age placed in . with him. 8, who were playing age farmyard time in the ad- immediately
At located an lawn, to the there was ditcher irrigation jacent placed belonging in that It had been defendant. day preceding neighbor location the the accident borrowing after it. who had returned the ditcher sulky con- ditcher be as two-wheel described sisting rectangular U wheels, of the two inverted crossing clamped single with a frame axle bar *6 right angles. the axle at the rear of the single-bar at Attached V-shaped, large a two- ditcher, frame is the plow. connecting and the two blades Between bladed plow edge thereof two the and near the are lower purpose strengthen the is to bars, steel evident which plow blades to that the two maintain the and assure positions. frame At front end the their relative the straight that a cantilever hitch. The evidence shows use, in it either with is not stand when the ditcher ground, plow or the end the in the air and hitch the weight further shows the The evidence vice versa. if the are the blades machine such distribution “very only pressure required little” would be the air in ground. bring hand, the On the other the blades resting ground “a it would take are on the if the blades pressure” on hitch of the amount of the end considerable put in air. itself The machine the biades the frame weight pounds weighs the bulk of the and about air, in the blades are in the blades. When strengthening are the reach of a small bars within child.
Shortly accident the defendant observed before yard playing noted the location and children left to take a load of then position He of the ditcher. During the accident his absence elevator. corn Philip following ran over to fashion. occurred strengthening bars, grabbed one ditcher, pinned swinging. ditcher came down and started 8-year-old Philip’s uncle, had ground. who to the him attempted to lift it but machine, to the followed watering 12-year-old had been aunt, who could not. nearby, a tree then came and the children were two plow Philip. to lift able from
The record shows that after the accident the defendant daughter, Philip’s stated to his mother, that the accident was “senseless,” that the machine should not have been where it was, and that all that would have taken prevent it Philip’s would have to, been the words “flip” plow ground. mother,
The defendant asserts that the evidence was insuf- any negligence ficient as a matter of law to establish part jury question. and therefore there was no He upon Hockenberger cites and relies Haden v. & Chambers Co., 193 Neb. 883; N. 2d W. the con- reasonably tention that the accident was not foresee- parked able. In the cited case the defendant had dragline adjacent pond to a lake or on land owned plaintiff, 17-year-old boy, it, injured and the when was. dragline diving platform. he used the as a there We affirmed directed verdict for the defendants and said machinery inherently in a static condition is not dangerous. properly clearly That case was decided and *7 principles. stated the correct But we are here con- completely evidentiary fronted with a different set of distinguish by facts which this case from that relied (1) the defendant. These are: The defendant’s actual knowledge presence of the of the child and of the child’s age. (2) extremely tender unstable character of position. (3) knowledge the ditcher’s The defendant’s proximity of the machine’s characteristics and its (4) playing. (to inviting area where the child was child) strengthening a small character of the bars when position. (5) the blades were in the elevated The rela- utility positioning tive lack blades in the ele- position position vated and the ease with which the relatively changed to a could be safe one. holdings
An examination of numerous courts duty have had occasion to define to a child of likely possessor tip of a chattel that is or fall in- 16 key the tender are
dicates
factors to be considered
chattel,
age
of the
child,
of the
characteristic
the unstable
presence
presence
of the
likelihood
and the
or the
known
inability
appreciate
hazard
of children
and their
following
age.
authorities:
because of tender
Kopplekom
See the
App.
Pipe
Co., 16 Colo.
v. Colorado Cement
side);
standing
pipe
(top-heavy
274,
Spencer JJ, in this dissent. McCown, Krystyniak al., et Ann appellant, Kolc, Julia appellees. N. W. 2d *8 April 1976. No. 40311. Filed