*1 litеm, another, Nechodomu, ad Respond Guardian others, ents, vs. Lindstrom Appellants.* 22, 1956. June 4 June * denied, costs, September with rehearing $25 Motion 1956.
For Lindstrom, Robert Abts and Wilbert appellants Ben there was brief E. Jr., Salinsky and & Gruhle Fessler, all Sheboygan, of and oral Mr. Salin- argument by sky.
For the Gerald Lambert and appellants Donald Zinda there were briefs and oral Emmert argument by Dudley 0. of Manitowoc.
For the there was a brief Frank A. respondents Murphy Cashman, litem, Manitowoc, John R. ad both guardian & attorneys, Murphy Brady and Cashman & all Savage, counsel, Mаnitowoc of and oral Mr. argument by Murphy and Mr. Cashman. 22, 1952, May On defendants Lambert and
Martin, J. Zinda were the owners located property just south of the of Manitowoc where city they operated farm-implement business. The includes a property large con- building of a store downstairs and sisting living quarters upstairs their said defendants and families lived. They *4 near a area the maintained with play building, sandboxes of and for the use their children and swings, neighboring children.
Lambert and Zinda had with contracted Robert Abts to imitatiоn stone called Dura-stone to the exterior of apply the of the On 22d Abts building. morning May a brought as a referred to “mud mixer” to machine the premises, machine the Dura-stone was which mixed for application the The machine was located to about 20 building. feet from the northeast wall of the and in dose to building proximity screen, cement, it a were sand and a placed pile sifting bags . a barrel and water which was means of a hose at- filled by tached to the for the Water mixture was takеn building. from the barrel with a pail.
The machine Its construc- was run by gasoline engine. or tion was that of drum with blades stationary revolving witness, fins, Becker, which defendants’ de- expert Elroy scribed than a mixer because as more cement time.” The “the fins are close to the drum all the of the top was 44 to inches above the and was drum ground open iron across and some- for five rods except horizontally placed the to admit a what above opening, spaced widely enough man’s arm. the thе machine was begun morning
When operation about, in- children gathered 22d the May neighboring Nechodomu, nine Jr., then Lind- aged years. cluding Joseph material, strom, the testified that who was mixing sand, it, shoveling sifting with children played filled with wa- the hose barrel was while being held Joey he “because wanted Joey remembered ter. He particularly and he told the children that should they do everything;” near the machine when it was running somebody not come hurt; should While he and they away. be go might lunch at noon noticed were еating Joey other employees child with the water hose and told them another go away. material and haul it to to mix job It Lindstrom’s it. About middle men applied where other the building material, of the he took afternoon, a load mixing after of the of the other side building around load a wheelbarrow left running The machine was working. the men reached Rickey left unattended was thus Zinda. and while the material. out some of to take with a can the drum into his hand re- right can and Joey put He dropped arе which damages sought. injuries it, receiving trieve *5 None of Abts’ could observe the machine from the employees where position on the they working building. first seven of the special verdict dealt with questions of the with parties to the cause of ac- negligence respect nuisance; tion based attractive the first three as to Lind- Abts; strom and the second ; three as Lambert and Zinda the seventh as to the minor.
Question inquired: “Were defendants Lindstrom or Abts in re- negligent to exist spect on the maintaining allowing premises Nechodomu, injury plaintiff, oc- Joseph Jr., curred, a machine inherently children such dangerous upon Yes.” premises? Answer:
Defendants contend the doctrine of attractive nuisance not does In apply. our the evidence opinion, presented ques- whether, tion of fact for the all under the circumstances was machine existing, inherently to children and constituted an attractive nuisance.
In Best v. 411, District Columbia 291 U. S. (1934), 419, 882, 487, 54 Sup. Ct. 78 L. Ed. where a child drowned after in falling a hole through wharf maintainеd de- fendant, the court stated: “The is one negligence, particular —whether rise to a
circumstances which had been gave duty not per- .. . The must find its source duty formed. cir- special which, reason cumstances of the inducement and of the fact that visits of children to the would be place naturally because of the character of the anticipated, which would be reasonable unwittingly exposed, pru- be taken for their dence would require precautions pro- tectiоn.” Rose
In v. Brothers Co. 194 Minn. Gimmestad (1935), 194, 261 N. where a while boy injured W. an with other children on a lumber on un- pile court, lot, Minnesota the Best fenced following private Case, stated: *6 nui- now that the ‘attractive
“It should be clear by phrase from the no sance’ indicates special departure exception a convenient cases. It is but run of ordinary negligence rule ordinary case within the to one sort of designate phrase that one is liable from failure for to another injury resulting child, the exercise, degree for the injurеd to the protection the therefore demanded by care commensurate with and care the hazard the greater The circumstances. greater required.” an mixer not inherently
In that the mud was contending v. cite Oscar Coffey defendants dangerous instrumentality, N. W. 252 32 (2d) & Co. Wis. Mayer (1948), set the the driver a fell off an ice truck when child truck was such a In whether vehicle motion. considering held that this court an inherently instrumentality, dangerous or- the driver exercised was not. In whether it considering circumstances, followed the court care under all the dinary 260, N. 26 W. v. Wis. County Giessel Columbia (1947), told the 'children In both cases the drivers had 650. (2d) did, truck, from the which they to off and stay away get not he could the truck where child mounted injured later hurt, was set in when the truck the driver and was by be seen motion. court not been held this have and automobiles Trucks “ nuisances, ‘is limited to doctrine be attractive of the likeli- children because are dangerous which
things them, not ex- and does meddle with will that children hood adults set when only become dangerous which things tend ” exercise rea- only are required Drivers in motion.’ them Mayer v. Oscar vehicle. Coffey care in moving sonable et Co., seq. supra, page & machine would be comparable or automobile
A truck were, instance, for left running it if only in question here unattended, such circumstances and under hood up, with them to attracted to who were children permit as would engine parts. the moving into reach mixer, It cannot be said as matter of law that the mud circumstances, under all the attendant was not machine inherently to children. That was, and its that it finding, amply supported evidence. The Becker testified it expert was a dangerous machine because the blades were close to revolving very ofwall the drum. The rods at the were neither deterrent top nor drum, to children who protection reach into the might and the of the height from the opening made ground easily accessible to children of the size those who age on the machine was in premises. motion and *7 unattended, it was with a clutch although equipped which would the frоm the motor. disengage moving parts That its and all the accessories to its operation operation pile, —sand hose, and water-—-were attractive the children was shown the evidence that by around they gathered the ma- watching sand, chine shovels, and with the the playing and the hose. “Sand close at hand piles would constitute 'a bait’ they would follow.” Best v. inevitably District Co- [children] of lumbia, 419. supra, page Lindstrom that testified several times the during morning machine, he saw the children around the рlaying that “they were back and forth there the passing sand and the water.” once, He further machine, testified upon returning he saw another and in the Joey field across the boy street and looked like were they they from him. hiding On cross- examination he said there was water on the near the ground it, machine and he wondered about that he admitting must have the children have been near thought might the machine he while was absent from it.
Here the facts are different from again the Coffey Giessel Cases. In thоse cases the children gathered around the trucks were told to stay away they did stay away. drivers, The no reason to having believe had returned they unable to see the injured child from their being position trucks, Here, as started the were held not up negligent. however, where Lindstrom reason had to believe the children absence, around the machine his was for the to determine whether the jury the machine operation in the manner it was constituted breach of the operated which was commensurate with duty the circumstances. that the trial court erred in argue Defendants submitting 1 in the affirmative. After the form question reading court instructed as jury follows: question “Now, is were these two defendants question negligent to exist allowing upon ma- maintaining premises to children inherently dangerous upon chine premises, we are about is this particular and the machine mud- talking machine which have viewed and you pictures which mixing have been received in evidence(Emphasis ours.) form of the would leаd argument question an to believe that the machine was jury inherently danger- is, court, as stated the trial a mere ous instrumentality not answer “Yes” words. The could play question from unless it had first determined the evidence that the machine was and the court’s instruc- inherently dangerous, tion made that clear. a “Yes” answer to contingent upon
Question the causal connection between the as to defendants’ inquired *8 and the to This was answered injury boy. negligence “Yes.” 3, also a “Yes” answer to contingent uрon ques-
Question 1, whether the defendants knew or should tion inquired (a) known that children were to be on the likely have premises “Yes;” occurred—answered where the accident and : (b) the defendants Lindstrom Abts realize or “Did should machine have realized that mud-mixing maintained they children and inherently them involved by serious bodily injury risk of children? An- unreasonable No.” swer:
322 3 whether the de- (c) question inquired
Subdivision fendants could have which would have safeguards provided without with the materially obviated interfering machine, work of the and that was answered “Yes.” 4, 5, 6 and and reiterated (a), (b), ques- Questions (c) 1, 2, tions and 3 and referred (a), (b), (c) except they defendants Lambert and Zinda. 6 similar Question (b), above, was likewise “No” 3 answered question (b) quoted whereas the remainder were “Yes.” jury, answered by 7 inquired: Question ‘Yes,’ both answer either or and 4 questions
“If you answer this question: then Nechodomu, because of his or tend- youth Jr., “Did Joseph the condition or realize the risk to discover er age, jail in close to the mud mixer and proximity involved in Yes.” in such mud mixer? Answer: his hand placing court, triаl found all the out As pointed estab which are to be found to required conditions existing in an case under the rule of lish attractive-nuisance liability Products Red Star Yeast & Co. (1934), v. Angelier 254 N. with the of realization W. exception Wis. that the machine was inherently dangerous defendants risk of to children. bodily injury and involved unreasonable the court an- On motions after verdict changed jury’s from “Yes.” swers to and 6 “No” to (b) questions (b) this was error. cannot De- Defendants contend We agree. themselves call attention tо Lindstrom testimony fendants Lambert, others, Mrs. Mrs. Gerald and including Joseph Zinda, Lambert, Mrs. Donald and the other Joey and from warned to the machine. Lind- stay away children were strom testified: first, I said but I know that I
“I don’t remember which did have to that when tell them that would they get away, not come anywheres the machine was should they running there, near I believe then backed but still they they up, away, I said that had to go they didn’t go away,
323 clear had to out otherwise stay some- completely away, hurt.” be body might
Defendants, that had wаrned admitting they frequently mixer, from the cannot the children to stay seriously away assert that not realize it created a condition inherent- did they the the children were They to children. knew ly dangerous the knew were attracted machine and they by present; they the character of the circumstances. surrounding They bound to that occur. anticipate injury might 574, 578,
In Konz Herrem v. 165 Wis. N. W. (1917), a a nine old was in where revolv boy years caught shaft a that under sawmill and defendant knew children ing thereto, in close this court sаid: played proximity to defendant was bound these circumstances “Under child com- result to some that an injury might anticipate therewith.” in contact ing found, all circumstances and under
The having time, was a machine at mixer conditions existing children, from it follow all the to must inherently dangerous realized evidence defendants’ warnings, regarding risk of children. and involved injury it the answers questions The trial court changed properly (b) (b). familiar ma- automobile other This is a case an not be is found. situation it normally chinе where placed chil- to a machine brought place that of an unusual with a sand and used in connection customarily played dren children have known for which objects pile water — that defendants should It was something natural propensity. natural would them children’s lead curiosity have realized machine, set in and left un- motion meddle Such with. attended, its which constituted the moving parts although been disengaging have stopped simply could were attracted clutch, known that children when was them tо the wa- play had fact permitted and defendants *10 ter and sand around it—under all these circumstances they should have that the children anticipated them- injure might selves just what did. by doing Joey
Counsel that in the of cases the argues majority doctrine of attractive nuisance has been ato dormant applied only condition true, That be but in suspended operation. may v. Kelly Southern Wisconsin R. Co. 152 Wis. (1913), 140 N. W. this court held that a con rope-and-pulley trivance in in linemen operation by of electric stringing wires on a street a city was such condition as made the doc trine Konz, See also Herrem applicable. v. supra. whether
The the minor question because of plaintiff, his tender failed to realize the risk years, involved in his placing hand into the drum of the machine was for the jury it found he did not realize the risk. testified that Joey he knew machine, there in were that paddles moving, that the machine a had motor and it was From running. this reason that he defendants must have realized the risk of his hand the drum. This is plаcing only his tes- part Fie further timony. stated just his prior hand placing in the machine Lou Zinda “Mary started to cement out get of the mixer she was the first one to some get cement hand, know, out. used her I think. She I because she told us.” After that the can in Rickey dropped the drum and then it Joey out. The attempted get could well jury infer that, from this testimony Mary Lou having taken successfully hand, out some of the material with her believed Joey he could do likewise. Becker, as stated danger, in the lay lack of clear-
ance between blades and the moving walls of the drum. Since the drum had cement in it at in, the time Joey reached cannot be said that he should have known of such lack clearance, or, it, even if he did know of he should have known it represented condition. The evidence of the inference that he did not appreciate susceptible of the jury’s finding question supports verdict. special
It is that the trial court erred in its contended instructions inform the that the because it did not burden of proof to show that failed to realize the Joey upon plaintiffs risk. The court instructed as to all the in the questions spe- cial verdict: ‘Yes,’ . . can a certain
“. before answer call- you *11 answer, a ‘Yes’ ‘No’ minds must be ing your satisfied ato the evidence where feel certain by you reasonably point ‘Yes;’ be that the answer to that should and if the question not evidence on does so question satisfy you, bearing ‘No,’ then answer to that should be or to dis- question your agree.”
The instruction was matter whose No burden proper. was to realize the extent of risk in- failed to prove Joey volved, the instruction not under could find given jury it was an- his favor unless evidence to persuaded by “Yes” swer 7. question
It is also contended that the instruction with re- following to “a machine inherently dangerous children spect upon such was erroneous: premises”
“An artificial condition be may peculiarly dangerous children because of their to intermeddle with tendency things them, which are attractive to but this is not the notoriously childish charactеristic which make an artificial only condition which involves may serious risk to an adult
no highly . to children. . . The lack dangerous experience normal to children them from may judgment young prevent or, that a condition observed them is by dangerous realizing realize that it is them may although from dangerous, prevent risk.” the full extent appreciating defendants, instruction is taken As out this pointed by 339, Restatement, Torts, com verbatim from 2 sec. p. ment on clause sub. c. James v. Wisconsin Power (b), (See 290, 295, & Co. Light Wis. 63 N. (1954), W. (2d) As stated Nechоdomu v. 116.) Lindstrom (1955), 455, 458, 69 N. Wis. W. when this case was be (2d) demurrer, fore us on the rule referred that it be requires whether the determined condition is dangerous such that the is obvious even to children and the risk is danger real fully ized them. The whether a condition question is inherently to children involves the whether the is such as would be obvious to children. We cannot see how the instruction been could have to make given this interrelation clear to the in words more than precise those used the trial court.
It be noted that the may defendant owners’ argument this directs attention to illustration 3 in point the Restate- ment, as supra, to comment on clause applying which is (b) the rule from which court’s instruction was In taken. this counsel is mistaken. Illustration 3 applies second subdivision of clause a subdivision (a), with the dealing when the risk is duty such that possessor’s children can ap- it. preciate above,
Following language quoted the court further *12 instructed, the rule of following the Restatement:
“In this connection with 7 are question you instructed that a land are under to duty while of so much ‘possessors keep their as know to be to the subject оf land of they trespasses children, free from artificial conditions which involve young risk an unreasonable of death or serious harm to them. bodily This does not them to their land con- require keep jree from ditions which even children are to likely observe and young the extent the risk involved in which are to they likely full of The the realise. of is to children from purpose duty protect which are to not they unlikely and to appreciate pro- them harm tect from their own immature against resulting therefore, recklessness in the case of known even danger, the condition is one which the possessors should real- though ise to he such children axe to unlikely that realise the young extent with it or the danger meddling encountering full it, who, are to to a in possessors subject liability not child discovers the condition and risk in- appreciates fact, full therein, volved but nonetheless chooses to encounter it out Restatement, 925, Torts, of recklessness or bravado.’ p. sec. comment on clausе (c).” (Emphasis ours.) see no We to the in this defendants instruction. prejudice Defendants a both as to Joey was argue trespasser as to the mud The has no premises and mixer. argument merit, since we hold that the doctrine of attractive nuisance in this case. applies for in-
“The doctrine imposes liability attractive-nuisance are of tender even years, though they to children juries are result of where such injuries technical trespassers, or in to take of the owner person chаrge proper the failure to children instrumentali- injuries precautions ties or conditions which prevent should, ordinary
he in the exercise of attract them naturally know would judgment prudence, In a situation it is not de- such danger. into unsuspected is situated de- maintained thing fense that under ordinary in of which consequence fendant’s property be a trespasser. would injured person circumstances as the general has an exception been regarded doctrine rule, in or person chаrge property . . . that an owner refrain from injuring has no duty trespasser except S., 65 C. Negli- wilfully, wantonly.” him intentionally, J. 456, sec. 29 (1). p. gence, maintain violat and Zinda Counsel Lambert independ no duty plaintiff permitting ed owing their the mixer on premises contractor to bring ent this was made when The same there. argument operate in Necho was answered was before us on demurrer and case re Lindstrom, this court v. supra, domu page Am. Jur., Independent iterated rule stated Contractors, 515, sec. 38. p.
327a action,
The stated twо causes of complaint one based on the attractive-nuisance and the other on the theory safe-place statute. The theories, case was submitted to the on both jury and the court entered on the judgment attractive-nuisance cause action. The findings amply support judgment.
By Judgment affirmed. Court.— following opinion filed 1956: September motion are con- (on rehearing). We Per Curiam fronted motion for filed the defendants rehearing Lambert and Zinda with the issue of whether our compara- 331.045, statute tive-negligence (sec. Stats.) applicable facts of the instant case so as to a reduction require in the amount of awarded to the damages plaintiffs by from. judgment appealed certain of the
While of the verdict questions special answers thereto are set forth in jury’s our original opin- ion, we it essential deem to set forth 11 of questions such verdict with the answers thereto: together jury’s Nechodomu, 10. Was
“Question Joseph Jr., negligent for his own Answer: Yes. safety? ‘Yes,’ 11. If answеr then you
“Question question answer this Was such on the question: negligence part Nechodomu, a cause of his Answer: Joseph Yes.” Jr., injury? its answer
By to question (the 'comparative-negligence attributed cent of the total question), jury 18 per negli- Nechodomu, gence plaintiff, Joseph Jr. Thus, its answer to although jury, by found that because of his or tender failed Joseph age youth, realize the risk involved in in close proximity machine, the mud mixer and his hand such placing found him nevertheless guilty contributory negligence. аre not inconsistent. The necessarily findings Such
327b have from the in the case that could well concluded evidence this he did not realize even nine-year-old boy, though mixer, risk involved in his hand inside the neverthe- placing less failed to exercise the of care which is ordinarily degree children of his and intelligence. exercised by age, experience, in Britten v. Eau that our decision Claire We deem 382, 391, 30, 51 is 260 Wis. N. W. (2d) directly (1952), answers to on the of whether jury’s ques question point its 10, 11, be to stand in view of and may tions permitted Mr. from 7. We quote answer Gehl’s Justice follows: in the Britten Case as opinion not be that a child of tender years may it is true “While conduct, as rules of statutory with of knowledge charged considered Scholz, and similar supra, v. VanLydegraf even in determining, still the warranted precepts, awith ma familiarity and in the absence of warning lacking character, that in himself to chine of this exposing he not exercise degree about this did of equipment of his children age, which is exercised ordinarily of care and intelligence.” experience, elements necessary application
One of essential that the injured of nuisance is of the attractive principle have minor, shall have failed to because of his tender age, in realize the risk condition discovered 265 Wis. N. W. R. Co. (1954), v. & Brady Chicago volved. Power & 624, 415; v. Wisconsin 618, James 62 N. W. (2d) 295, 116; 63 N. W. (2d) Co. Wis. Light (1954), However, this Restatement, Torts, sec. 339. p. never nuisance of attractive not mean that the doctrine does of contributory negligence. the child is guilty applies and this in determining negligence, bеcause the test This is not a is an objective contributory negligence, includes not Therefore, or did the actor did whether one. subjective no ma be of may situation of the the danger appreciate teriality.
327c of law attractive nuisance is but a of the law phase It follows that if the
negligence. child necessarily plaintiff our guilty contributory negligence comparative-negli of that statute This was the gence applies. necessary import Claire, in Britten Eau our decisiоn v. wherein part supra, we held that child’s contributory plaintiff negligence issue. presented jury *15 is, therefore,
It our conclusion that the trial court erred for the full amount of the found entering judgment plaintiffs’ instead of the same cent of damages by reducing per total child. aggregate negligence plaintiff mandate is and the is vacated modified prior judgment recoverable by reducing damages plaintiff, Joseph Nechodomu, $15,600 $12,792, from Jr., by reducing Nechodomu, recoverable plaintiff, Joseph damages and, modified, $2,227.60 $1,826.63, from as so the judg- tax affirmed. The defendants are entitled to costs on ment is this The motion denied with rehearing appeal. $25 costs to the moving parties.