*6421 2 3 4 *6435*641Tbe plaintiff, wben a child of less tban four years, was injured wben playing on a coal chute lean*642ing against the defendant’s engine house. It was about 6 feet long, and from 3¿ to 4 feet wide, made of plank more than 2 inches thick, and across it about a foot from each end were cleats 4 inches square. When not in use, the chute was leaned against said house with cleats out, the lower end about 2 feet from the building, which was back some 5 feet from the street line. The cement sidewalk extended from the curb line to the house, the yard of which was not inclosed. The plaintiff was seen standing on the lower cleat immediately before the accident, and probably pulled the chute over on her by taking hold of the upper cleat and throwing herself back. It fell on her, breaking an arm. Doubtless, as contended by appellant, this child, because of her tender age, cannot be charged with contributory negligence, 'though repeatedly warned about playing near the engine house. Thomas v. Railway Co., 93 Iowa, 248. Nor can the negligence of her parents, who appear also1 to have been warned, be imputed to her. Wymore v. Mahaska County, 78 Iowa, 396. Upon the alleged negligence of defendant the court instructed that the jury must find, in order to entitle her to recover, “that said coal chute, by reason of the place where it stood and the position, was dangerous to persons passing along the sidewalk opposite thereto.” Appellant insists that the evidence conclusively established defendant’s negligence under this instruction. As said, the chute was several feet back from the street line. It is shown to have weighed about 200 pounds, and therefore not likely to have been blown over by the wind, nor to fall over unless meddled with. It cannot be- said that merely leaving it in the position shown was negligence as a matter of law, and whether danger lurked in it to children who might be attracted to play on it, and this was of a character such that defendant’s agents' ought, in the exercise of reasonable care, to have guarded against, was at the most, for the jury to determine. Cason v. City of Ottumwa, 102 *643Iowa, 99, and Bliven v. City of Sioux City, 85 Iowa, 346, relied on by appellant, are not in point. In the former the evidence was held sufficient to sustain the verdict, not to establish negligence as a matter of law; and in the latter the necessity of serving notice only was considered. What we have said disposes of every point made in appellant’s original argument and peply, but in what counsel is pleased to call a supplemental reply the instructions are assailed as erroneous. Assignments of error argued for the first time in the reply-will be disregarded. Renwick v. Railroad Co., 49 Iowa, 664; 2 Cycl. Law & Proc. 1018. — Aeeirmed.
AI-generated responses must be verified and are not legal advice.
