92 Iowa 135 | Iowa | 1894
I. It appears from the evidence in the case that bn the twenty-seventh day of November, 1890, William D. Talty and his brother, and F. J. Hawley, -and Robt. Jensen, who were all small boys from seven to nine or ten years of age, went to a sandpit in the outskirts of the city of Atlantic, with shovels and a small cart, and dug sand in a-bank in the pit, and carted some of it to the home of the Talty boys, near by, and put it in a chicken coop. They were at this play in the forenoon, and returned and
“In the forenoon the Talty boys and I went over to the-sandbank. Were there most of the forenoon, and were digging in the sand, and shoveling out. We were digging back into the bank, trying to dig a place up into the bank for little houses. We went home to dinner, and after dinner went back again, and the Hawley boy with us. Commenced digging again in the sand where we had been digging the little houses in the forenoon. We dug south into the bank. We dug a hole in the bank in three places, and the Hawley boy was digging a place for himself. Willie Talty was digging a place for him, and the little Talty boy and I was digging a place for us. In the forenoon the little Talty boys asked me to go over to the sandbank with them, to get sand. That Mrs. Talty (their mother) said they could go and bring down some sand to the house, and we went over there, and brought a little load of sand back home at noon, and put the sand in Mrs. Talty’s chicken coop. When we got back to Mr. Talty’s with the sand, and going to the chicken house, Mrs. Talty
III. There can be no question that if this action had been brought to recover for the death of an adult person there would be no right of recovery. No recovery could be had in such case, because the casualty would have been the result of the inexcusable negligence of the deceased. And no action would lie for an injury to a traveler upon the street, who should in the daytime, for some reason, leave the traveled track, and fall into the excavation. Counsel for appellee eite cases in which it is held that if an obstruction or excavation be permitted which renders a street dangerous to persons or vehicles, whether the excavation be in the. street or so near it as to be dangerous to persons
Three separate actions were brought to recover for the death of the three boys. In the case for the death of the boy Hawley, decided at the present term, there was a verdict and judgment for the plaintiff for five hundred dollars. In the other case there was a verdict and judgment for the city. It thus appears that three juries have passed upon the question of liability, in one of which the jury determined that there was no cause of action, and in the other two the verdicts are for such meager amounts as to lead to the belief that they were a compromise among the jurymen, or that they believed there was no real ground for a verdict for substantial damages. It is useless to review authorities in a case like this, for the reason that no two cases can be found based upon like facts. As supporting the views herein expressed, see Murphy v. City of Brooklyn, 98 N. Y. 642; Keyes v. Village of Marcellus, 50 Mich. 438, 15 N. W. Rep. 542; Gavin v. City of Chicago, 97 Ill. 66; Goeltz v. Town of Ashland, 44 N. W. Rep. (Wis.) 770; Ratte v. Dawson, 52 N. W. Rep. (Minn.) 965; Clarke v. City of Richmond, 5 S. E. Rep. (Va.) 369; Frost v. Railroad, 64 N. H. 220, 7 Atl. Rep. 790. In Railroad v.