68 Wis. 271 | Wis. | 1887
Ve think the demurrer in this case was properly sustained, for the reason that the complaint shows no actionable negligence on the part of the defendant. The complaint states that the defendant was the owner of and in the possession of a lot in the city of Milwaukee, situated on the northeast corner of Hubbard and Lloyd streets; that the lot was in a thickly settled and populous part of the city, and was not inclosed by fence either in front thereof between it and Hubbard street, or on the side between it and Lloyd street, but that the lot was vacant and open, so that the public had free and unobstructed access thereto from both Hubbard and Lloyd streets; that for a long time prior to the 5th of September, 1885, there had been upon the lot a deep and dangerous hole or excavation, partially filled with water, making a pond which covered about the entire surface; that the water of the pond was roily, so that its depth could not be ascertained except by measurement, but that in places it was of the depth of nine feet, so that the pond was dangerous to the lives of children who might be attracted thereto for amusement or otherwise; that the defendant, 'well knowing that the pond was dangerous to the lives of children residing in the vicinity of the same, wrongfully, negligently, and carelessly permitted it to remain unguarded by fence or barricade, and the plaintiff’s son, a lad about nine years of age, “ while playing upon and about said pond of water, being induced thereto by reason of the unguarded and unprotected condition of said hole as aforesaid, fell and was precipitated, into the same and was drowned.”
It will be observed that it is not alleged that the pond was so near the highway as to make it unsafe for passengers going along the street or sidewalk; and no averment that the boy when he fell into the pond was passing along the street or sidewalk. On the contrary, it is stated that the boy was playing upon and around the pond when he was
If the defendant was bound to so fence or guard the pond, upon what principle or ground does this obligation rest? There can be no liability unless it was his duty to fence the pond. It surely is not the duty of an owner to guard or fence every dangerous hole or pond or stream of water on his premises, for the protection of persons going upon his land who had no right to go there. No such rule of law is laid down in the books, and it would be most unreasonable to so hold. A learned author states the doctrine in these words: “An owner of land is under no obligation to fence an excavation on his land, unless it is so near the highway as to amount to a public nuisance; and if persons or animals are killed or injured in consequence of his failing to do so, no damages can be recovered. A qualification of this rule is that when the owner of land, expressly or by implication, invites a person to come upon it, he will be liable for damages if he permit anything in the nature of a snare to exist thereon which results in injury to such person, the latter being at the time in the exercise of ordinary care. If, however, he gives a bare license or permission to cross his premises, the licensee takes the risk of accidents in using the premises in the condition in which they are.” 1 Thomp. Neg. 361. Among other authorities cited by the author to sustain this doctrine of the text is Hardcastle v. South Yorkshire R. Co. 4 Hurl. & N. 67, where Pollock, C. B., uses this language: “ When an excavation is made adjoining to a public way, so that a pei’son walking upon it might, by making a false step or
This question is very fully discussed in Hargreaves v. Deacon, 25 Mich. 1, and Gramlich v. Wurst, 86 Pa. St. 74. In Hargreaves v. Deacon, the plaintiff, as administrator, sought to recover damages for the death of a son, a child of 'tender years, who was killed by falling into a cistern which had been left uncovered on premises not immediately adjoining the highway. After a learned and able examination of many cases, Mr. Justice Campbell finds no support to any doctrine which would authorize a recovery. The cistern, he says, “ was made, as is customary, with its top substantially on a level with the earth around it, and as is usual where reservoirs, vaults, sewer openings, and the like are made where there is much occasion for passage, and where an elevátion might be inconvenient. Such openings require for safety a cover which will bear such pressure as is likely to be brought upon it and keep passengers from
There is a class of cases which hold the proprietor liable for injuries resulting to children from dangerous machinery left unguarded and so exposed as to be calculated to attract their interference with it. Railroad Co. v. Stout, 17 Wall. 657; Keffe v. M. & St. P. R. Co. 21 Minn. 207; and Koons v. St. L. & I. M. Railway, 65 Mo. 592, are of that character. In Hydraulic Works Co. v. Orr, 83 Pa. St. 332, the platform which caused the injury was upon a private passage or cart-way adjoining a factory; and in Birge v. Gardiner, 19 Conn. 507, the gate was on or near the line of the lane or public pass way. In this case the plaintiff recovered, but a new trial was ordered on the ground of misdi-
The rule that holds persons responsible for injuries caused by spring guns, man-traps, etc., is familiar and well settled; but it has no application here. Unless we hold that the defendant was under a legal obligation to fence this pond for the protection of children reaching and playing upon it, there can be no recovery. And it is obvious that a fence would have to be very high and very tight to afford any effectual guard against children having access to the pond. But upon the facts, we do not think the law imposed the duty upon the defendant of building a fence or guard to prevent children from reaching the pond; therefore he is not liable for the death of the child.
By the Court.— The order of the circuit court sustaining the demurrer is affirmed.