67 P.2d 627 | Colo. | 1937
THIS action was instituted by Donald Simkins, a minor, by his mother and next friend, Elizabeth Simkins, against R. T. Dowis for recovery of damages for injuries sustained by the plaintiff while playing with other children on defendant's merry-go-round in the city of Sterling, Colorado. The plaintiff alleges that the defendant negligently permitted the merry-go-round, at the time only partially installed, to remain unguarded and unprotected, although the defendant knew that the machinery was in a dangerous condition and liable to cause damage and injury to children who naturally would be attracted thereto; that the installation of a merry-go-round constituted the maintenance of an attractive nuisance; that numerous children had, in fact, gathered on the premises where the machinery was being installed and that plaintiff, then eight years of age, climbed upon the merry-go-round and when it was revolved by other children, had his foot *357 caught in the rotating cog wheels whereby he was seriously injured.
The plaintiff's evidence shows that the defendant, who had been in the amusement business, operating merry-go-rounds, ferris wheels and other amusement devices for a considerable period of time, on May 4, 1934, began the installation of a carnival in Sterling, consisting of a number of machines for the entertainment of children and others. During this day he began the erection of the merry-go-round involved, but its installation had not been completed, when shortly before six o'clock in the afternoon the defendant and his employees, who were engaged in the erection of the merry-go-round, ceased work and left it wholly unprotected, unfastened and unguarded. The upright brace constituting the bearing or perpendicular axle upon which the merry-go-round rotated had been installed and the upper part of the revolving structure from which later the horses, compartments and lower platforms of the merry-go-round would be suspended, was in place, as was the cog wheel mechanism which causes the wooden horses on the merry-go-round to rise and fall as the merry-go-round turns. Soon after the departure of the defendant and his men from the scene a considerable number of children congregated around the machinery. Several children, among whom was the plaintiff, climbed up to the superstructure of the machine and located themselves at various points thereon, the plaintiff being in proximity to the cog wheel mechanism mentioned. At this point two boys, about fourteen years of age, threw a rope over one of the projecting arms of the superstructure and began to revolve the merry-go-round thereby causing the cog wheels mentioned to turn. Plaintiff's foot, by some means, became entangled in these revolving cog wheels and his foot and ankle were so badly crushed and mangled that it became necessary to amputate his leg between the knee and ankle.
At the conclusion of the plaintiff's case, upon motion of the defendant, the court directed a verdict in favor of *358 the defendant on the grounds that there was no proof of any negligence on the part of the defendant; that there was an intervening cause of the accident, to wit, the boys with the rope; that there was no proof that the defendant by the mere construction of the merry-go-round was under any obligation to protect the plaintiff from injury therefrom, and that there was no proof that the defendant knew or had reasons to know that the merry-go-round he had left unprotected was in a dangerous condition and, therefore, it was to be assumed that the defendant had exercised reasonable care.
It is our conclusion that the court erred in granting the motion for a directed verdict.
[1] The pleading and evidence of the plaintiff bring this case clearly within the principle of the attractive nuisance doctrine or "turntable" cases. The turntable doctrine has been considered and approved by this court in several cases, among which are: Kopplekom v. ColoradoCement Pipe Co.,
The leading case on the subject in the United States is probably that of Railroad Company v. Stout, 17 Wall. 657,
"Now the ground of complaint against the defendant, as set out in the petition, is that the turntable, as it was constructed, was of a dangerous nature and character, when unlocked or unguarded, and that being, as it is alleged, in a place much resorted to by the public, and where children were wont to go and play, it was the duty of the defendant to keep the same securely locked or fastened, so as to prevent it from being turned or played with by children, or to keep the same guarded, so as to prevent injuries such as befell the plaintiff.
"The basis of this action, therefore, is that the defendant owed the plaintiff a duty of this kind; that, in failing to discharge this duty, the defendant was guilty of negligence; * * *.
"The machine in question is part of the defendant's road, and was lawfully constructed where it was. If the railroad company did not know, and had no good reason to suppose, that children would resort to the turntable to play, or did not know, or had no good reason to suppose, that if they resorted there, they would be likely to get injured thereby, then you cannot find a verdict against them.
"But if the defendant did know, or had good reason to believe, under the circumstances of the case, the children of the place would resort to the turntable to play, and that if they did they would or might be injured, then, if they took no means to keep the children away, and no means to prevent accidents, they would be guilty of negligence, *360 and would be answerable for damages caused to children by such negligence."
This instruction to the jury was approved by the United States Supreme Court on the appeal of the Stout case, supra, to that court. Under this rule the defendant's negligence, if it does exist, is in the leaving without proper care, a dangerous machine attractive to children in a place where it might reasonably be expected children would congregate and put it in motion to the injury of themselves or others.
In the case at bar the very fact that a large number of children admittedly gathered by the merry-go-round, even in its uncompleted state, is persuasive proof that the merry-go-round had inherent qualities that made it attractive to children. A perusal of the "turntable" cases proper would indicate that, to some extent at least, it has been judicially suggested that the attractiveness of a turntable to the childish mind is based upon the similarity of that piece of machinery to a merry-go-round. The Supreme Court of Iowa, in the case of Edgington v. RailroadCompany,
With reference to the extent of the proof required to show the dangerous character of the attractive instrumentality, this court in the Kopplekom case, supra, at page 277, said: "The complaint alleges the danger in leaving the piping exposed as it was, and in fact it may be said, as was said in the turntable case, the fact of the fatal injuries being received therefrom by the son of the plaintiffs in this case, shows the danger." *361
In the case at bar this dangerous element was likewise shown by the fact that the plaintiff had his leg badly injured by the mechanism of the unprotected machine.
The case at bar is clearly distinguishable from the cases of Hayko v. Colorado Utah Coal Co.,
[2] The judgment of the trial court in directing a verdict for the defendant was apparently to some extent based upon the theory that the plaintiff's injury resulted from the intervening action of the boys with the rope who actually caused the merry-go-round to revolve. Even with this being the fact, as is conceded, such intervening cause would not defeat the plaintiff's right of recovery. This rule is well stated in 45 C. J., p. 784, § 187, as follows: "The act of a third person in setting in motion machinery attractive to children and left unguarded is not considered such an intervening independent cause as will relieve the owner of such machinery from liability for injury to a child, and a fortiori, the act of the child in the course of his play, after he reached the dangerous and attractive premises or machinery, cannot be regarded as an intervening efficient cause which will relieve the owner of liability."
Nor does the fact, as suggested by counsel for the defendant, that the boys who placed the machine in operation were of such an age that they should have anticipated the result of their action and thereby be guilty of negligence themselves, alter the situation. In the case ofGulf, Colorado S. F. Ry. Co. v. McWhirter,
Likewise, in this connection it was said by the Supreme Court of Iowa in Edgington v. Railroad Co., supra, at page 445: "It is finally said that the negligence, if any, of the defendant, was not the primary cause of the injury complained of, and that no injury would have occurred had not a third person removed the fastening, and still another revolved the table. This contention is not supported by the authorities. In the very nature of things, a child cannot well be injured upon a turntable without the intervention of some other person to revolve the machine."
We believe, therefore, that the evidence of the plaintiff was prima facie sufficient to bring the case within the attractive nuisance doctrine and that the matter should have been submitted to the jury with proper instructions.
[3] As one of the defendant's grounds for a directed verdict it was asserted that the complaint contained no allegation showing the exercise of due care on the part of the plaintiff, and that the proof was silent on this subject. The court ruled adversely to the defendant on this contention and the question is presented here on a cross-assignment of error. This proposition will likely arise in the new trial of the case, so we deem it advisable to mention our views on the subject. Whether the plaintiff lacked sufficient age and intelligence to be protected by the principle of the "turntable" cases in exposing himself to danger in climbing upon the merry-go-round, is a question for the jury. The general rule relative to the status of infants in negligence cases in Colorado is stated in the case of Colorado Utilities Corporation v. Casady,
In the Montana case of Gates v. Northern Pacific Ry.Co.,
The judgment is reversed.
MR. CHIEF JUSTICE BURKE and MR. JUSTICE HOLLAND concur. *364