177 Wis. 262 | Wis. | 1922
Under the allegations of the complaint we think it is a jury question whether the barriers therein described, assuming the proofs will sustain the allegations, are reasonably efficient and safe in view of the fact that defendant knew that children were in the habit of playing around the ditch; and also whether it was not the duty of the defendant to so shore up the ditch at night that it would be reasonably safe for children playing around it. The duty of the defendant was not to make it impossible for children to reach the ditch, or make it absolutely safe, but to make the place reasonably safe for children at play about it. The place in question being a public street where children are accustomed to play and have a right to be, the case does not fall under the rule of Zartner v. George, 156 Wis. 131, 145 N. W. 971, or Emond v. Kimberly-Clark Co. 159 Wis. 83, 149 N. W. 760, where the locus in quo was on private property, but under the rule of Secard v. Rhinelander L. Co. 147 Wis. 614, 133 N. W. 45, and Kelly v. Southern Wis. R. Co. 152 Wis. 328, 140 N. W. 60. The rule as to liability is so fully discussed in the cases mentioned that we do not deem it advisable to restate it.
By the Court. — Order affirmed.