No. 6103 | Wash. | Oct 19, 1906
The appellant, a minor of the age of nine years, lost two of his toes on a pulley or sheave wheel operated by the respondent, a brewing company, and brought this action to recover for the injury suffered. The pulley in question was placed in the center of one of the spur tracks of the Northern Pacific Railway Company, and was used by the respondent in connection with a wire cable and donkey eiigine to move cars up and down the track for the more convenient operation of - its brewing plant. The brewing plant of the respondent is situated at Georgetown, in King county, just east of the main tracks of the railway company, which run parallel with and immediately in front of the plant. There is a street in Georgetown called Nora Avenue which runs at right angles to the railway tracks, crossing them just south of the brewery company’s plant. This street had never been condemned across the railway company’s right of way, and all that part lying east of the track had been vacated by ordinance' of the town council sometime prior to the accident, the vacated portion becoming thereby the private property of the respondent. The street, however, was' not closed to travel, and at the time of the accident was used by a considerable number of the people who found it the most convenient means of passing to and from their own property and the business section of the town. The street had never been improved, and travel over it took the most convenient way. Where the street abutted on the railway right of way there was an embankment of considerable height, to avoid which the travel turned, one track going next to the
Just prior to the accident, tire minor appellant, in company with another boy of about his own age, while passing over the railway track on the path next the respondent’s property, was attracted to the wheel and went over to examine it. The boys do not agree in their testimony as to the conditions immediately preceding the accident; but the boy who accompanied the appellant seems to have the clearer idea of what happened. He testifies that the cable was being drawn slowly through the pulley when they reached it, and that the appellant put his foot on, when it started up rapidly, drawing his foot between the cable and the pulley, with the result above stated.
The trial judge first submitted the case to the jury, which returned a verdict for the appellant. Afterwards he granted a motion for a new trial on the ground that the evidence, as a matter of law, did not justify a verdict. This appeal is from the order granting the new trial.
The motion for a new trial was not filed before it was served on the appellant, and a motion was made in the court below to strike it for that reason. The respondent, in answer to the motion, asked, and over the objection of the appellant obtained, from the court an order extending the time within which to move for a new trial, and the motion for a
Passing to the principal question, we think the court was in error in holding that the evidence introduced at the trial did not justify a verdict. There are jurisdictions in which it is maintained, as a hard and fast rule, that, if a child goes upon the premises of another without express permission and is there injured by coming in contact with dangerous machinery, it cannot recover damages from the owner, on the principle that such owner owes the child no active duty to see that it does not come to harm, but only the duty not to wantonly or willfully injure it. But this court has not adopted this rule in its entirety. Where the dangerous machinery is connected with an ordinary manufacturing plant, and so surrounded with the ordinary safeguards as to legitimately lead to the conclusion that children of immature years unattended will not approach it, the owner or operator owes no such duty of active vigilance to possible trespassing children as requires him to keep a guard over the premises; and hence he is not responsible if a child does approach and
On the other hand, we have held that, where dangerous machinery and dangerous substances, of a character likely to excite the curiosity of children and allure them into danger, have been left unguarded in exposed places close to the highways, or play grounds of children, even though on the premises of the owner, and children have been attracted to them and met With injury, the owner or person leaving the dangerous machinery or substance is liable for such injury. Cases of this'class are Ilwaco etc. Nav. Co. v. Hedrick, 1 Wash. 446" court="Wash." date_filed="1890-12-10" href="https://app.midpage.ai/document/ilwaco-railway--navigation-co-v-hedrick-4718202?utm_source=webapp" opinion_id="4718202">1 Wash. 446, 25 Pac. 335, 22 Am. St. 169, and Nelson v. McLellan, 31 Wash. 208, 71 Pac. 747, 96 Am. St. 902. The first is a turntable case,- and the second a case where dynamite had been left partially exposed on a vacant lot used by children as .a play ground. The children injured in each case had no special license to be at the place where the injury occurred, nor did the owner of the articles or substance causing the injury owe to the children any special duty of protection or care. But the cases are rested on the principle that it is negligence in itself to leave, exposed and unguarded near the haunts of children, dangerous machinery or compounds which must necessarily result in injury to them if they come in contact with it. It matters not that the dangerous article may be on the premises of its owner, or that the injured person
Applying these principles to the case before us, we think the court erred in adjudging that the facts shown by the evidence did not warrant a recovery. Whether the sheave wheel when in operation belonged to the class of dangerous machinery, whether it was of such an attractive or alluring character as to attract children, and whether it was placed and operated, without guards or protected, so close to a public highway that it must have been foreseen that it 'would attract and injure a child of such tender years as the plaintiff, were questions for the jury to determine from all of the evidence, and the court was right in submitting it to them in the first instance, but in error in afterwards holding that the question presented was of such a nature that it must be determined in favor of the defendant as a matter of law.
We conclude therefore that the order appealed from must be reversed, and the cause remanded with instructions to enter a judgment upon the verdict returned by the jury. It is so ordered.
Mount, C. J., Rudkin, Root, Dunbar, and Crow, JJ., concur.