117 Me. 194 | Me. | 1918
This is an action to recover damages for alleged. negligence on the part of the defendant and comes up on report.
The defendant bought a tract of land in the suburbs of South Portland, plotted the same and engaged in the sale of lots. In the
In the previous year, 1915, the defendant had opened another tract of land for sale in the neighborhood of these premises offered for sale in 1916. The plaintiff, a boy of the age of six and one-half years when the accident occurred, lived with his parents on one of the lots in the tract opened in 1915 During the development of the tract opened in 1916 the defendant moved thereon, from the land developed in 1915, a small portable shed, or shack, and located it about one-third of a mile from the plaintiff’s home. The mother of the plaintiff testified that it was not visible from her house in its new location. The father of the plaintiff described the building as being six by eight feet in dimension, about seven and one-half feet high, from the eaves to the ground, with four corner posts resting on timbers, which he described as shoes with one end of each sniped off so they would not dig into the ground when the building was hauled from place to place, a task easily performed by one pair of horses. He further testified that there was a floor in the building which was so placed as to leave an open space between it and the ground of about two and one-half feet in height. There was a door in one end of the building and movable steps, to lead from the level of the ground to the level of the floor. From the photographs introduced in the case it appears that the sides and ends of the building were boarded down to the ground or, as the plaintiff’s father stated, “it was boarded from the ground to the eaves.” These boards were nailed horizontally, and those which were on the end of the building containing the door, and between the floor and the ground, were arranged on hinges to swing upward when the steps were removed, forming what was called, in the
We have stated the plaintiff’s contentions at some length because he invokes the principle of liability for maintaining dangerous structures attractive to children, and because he is at variance with the defendant as to whether he was an invitee, licensee or trespasser on the defendant’s land.
In the plaintiff’s brief are to be found a large number of cases from other jurisdictions supporting the doctrine of liability for maintaining dangerous structures attractive to children, but no such citation is made of any case so decided by this court. Indeed our court has distinctly declined to adopt this doctrine although admitting that other courts have adopted it. This principle has been so recently and thoroughly discussed that it is only necessary to refer to McMinn v. N. E. Tel. Co., 113 Maine, 519, and Nelson v. Burnham-Morrill Co., 114 Maine, 213. We adhere to our previously expressed position upon this point.
Was the plaintiff an invitee, licensee or trespasser upon the defendant’s premises at the timé when he obtained the nitro-glycerine caps? Upon the answer to this question depends the degree of care for which the defendant may be held responsible.
It is not claimed that on the morning when the caps were obtained ” the plaintiff was on the premises by reason of any express invitation
As we have already said, the plaintiff claims that these dangerous caps were left out upon the ground, unprotected and easily obtainable. The defendant and his witnesses stoutly deny this. One of the little boys who was with the plaintiff, in the frank manner characteristic of a boy of seven years of age, told of some one of their number seeing the shack and suggesting a visit thereto; that two of the boys took the steps away; that an attempt was made to lift up the trap door but the attempt failed because it was nailed; that the plaintiff looked under the building and first saw a pick and shovel, then saw the caps in a box and, finally, having laid down and reached under the building, got hold of the box, pulled out the caps and carried some away. Two other playmates of the plaintiff, one nine years of age and the other seven, in a naive way'fully corroborated this story.
From a careful study of all the evidence we feel that the plaintiff has failed to show that the defendant did anything to wantonly injure him, or that defendant wantonly and recklessly exposed him to danger.
It becomes therefore unnecessary to discuss proximate cause and other defenses raised against the plaintiff’s action.
Judgment for defendant.