Klix v. Nieman

• Citation: 32 N.W. 223,68 Wis. 271
• Parties: KLIX, ADM'R, ETC., v. NIEMAN.
• Decision Date: 01 March 1887
• Court: United States State Supreme Court of Wisconsin

68 Wis. 271

32 N.W. 223

KLIX, ADM'R, ETC.,

v.NIEMAN.

Supreme Court of Wisconsin.

March 1, 1887.

Appeal from circuit court, Milwaukee county.

Action to recover damages for the death of a child, brought by William Klix, as administrator, appellant, against Fritz Nieman.J. Coleman, for appellant.

Johnson, Rietbrock & Halsey, for respondent.

COLE, C. J.

We think the demurrer in this case was properly sustained, for the reason that the complaint shows no actionable negligence on the part of the defendant. The complaint states that the defendant was the owner of and in the possession of a lot in the city of Milwaukee, situated on the northeast corner of Hubbard and Lloyd streets; that the lot was in a thickly settled and populous part of the city, and was not inclosed by fence, either in front thereof between it and Hubbard street, nor on the side between it and Lloyd street, but that the lot was vacant and open, so that the public had free and unobstructed access thereto from both Hubbard and Lloyd streets; that for a long time prior to the fifth of September, 1885, there had been upon the lot a deep and dangerous hole or excavation, partially filled with water, making a pond which covered about the entire surface; that the water of the pond was roily, so that its depth could not be ascertained except by measurement, but that, in places, it was of the depth of nine feet, so that the pond was dangerous to the lives of children, who might be attracted thereto for amusement, or otherwise; that the defendant, well knowing that the pond was dangerous to the lives of children, residing in the vicinity of the same, wrongfully, negligently, and carelessly permitted it to remain unguarded by fence or barricade, and the plaintiff's son, a lad about 9 years of age, “while playing upon and about said pond of water, being induced thereto by reason of the unguarded and unprotected condition of said hole as aforesaid, fell and was precipitated into the same, and was drowned.”

It will be observed that it is not alleged that the pond was so near the highway as to make it unsafe for passengers going along the street or sidewalk; and no averment that the boy when he fell into the pond was passing along the street or sidewalk. On the contrary, it is stated that the boy was playing upon and around the pond when he was precipitated into the water and drowned. So the single question presented is, was it the duty of the defendant to fence or guard this hole or excavation on his lot (which it does not appear he made or caused to be made) where surface water collected, in order to secure the safety of strangers, young or old, who might go upon or about the pond for play or curiosity? If the defendant was bound to so fence or guard the pond, upon what principle or ground does this obligation rest? There can be no liability unless it was his duty to fence the pond. It surely is not the duty of an owner to guard or fence every dangerous hole or pond or stream of water on his premises, for the protection of persons going upon his land who had no right to go there. No such rule of law is laid down in the books, and it would be most unreasonable to so hold. A learned author states the doctrine in these words: “An owner of land is under no obligation to fence an excavation on his land, unless it is so near the highway as to amount to a public nuisance; and if persons or animals are killed or injured in consequence of his failing to do so, no damages can be recovered. A qualification of this rule is that, when the owner of land, expressly or by implication, invites a person to come upon it, he will be liable for damages if he permit anything in the nature of a snare to exist thereon, which results in injury to such person, the latter being at the time in the exercise of ordinary care. If, however, he gives a bare license or permission to cross his premises, the licensee takes the risk of accident in using the premises in the condition in which they are.” 1 Thomp. Neg. 361. Among other authorities cited by the author to sustain this doctrine of the text is Hardcastle v. South Yorkshire Ry., 4 Hurl. & N. 67, where POLLOCK, C. B., uses...