Ambroz v. Cedar Rapids Electric Light & Power Co.

• Decision Date: 12 July 1906
• Citation: 108 N.W. 540,131 Iowa 336
• Parties: OTTO AMBROZ, by his next friend, FRANK AMBROZ, v. CEDAR RAPIDS ELECTRIC LIGHT AND POWER COMPANY, Appellant
• Court: Iowa Supreme Court

108 N.W. 540

131 Iowa 336

OTTO AMBROZ, by his next friend, FRANK AMBROZ, v. CEDAR RAPIDS ELECTRIC LIGHT AND POWER COMPANY, Appellant

Supreme Court of Iowa, Des Moines

July 12, 1906

Appeal from Superior Court of Cedar Rapids.--HON. JAMES H. ROTHROCK Judge.

ACTION to recover damages for personal injuries. Verdict for plaintiff, and from judgment thereon the defendant appeals. Affirmed.

Affirmed.

S. K Tracy, W. E. Steele, and John A. Reed, for appellant.

Rickel Crocker & Tourtellot and Joseph Mekota, for appellee.

OPINION

MCCLAIN, C. J.

Defendant 's power house is located in a portion of the city of Cedar Rapids devoted almost exclusively to railroad and manufacturing purposes. At the rear of the plant and across the alley from it is an arm of a small, shallow lake, the shore of which has been filled out by defendant by the deposit of cinders taken from its boiler room. Men and boys have been in the habit for many years of fishing along the bank of this arm of the lake, and workmen and others have been accustomed to pass and repass along the shore to such extent as to wear tracks in the cinders. The blow-off pipe from defendant's boilers is extended under the alley and under the cinders forming the lake bank at this place, and has its opening near the water's edge. Plaintiff, a boy of twelve years of age, with a companion of the same age, while engaged in fishing, was struck in the back by a blast of steam from this blow-off pipe and was severely injured, and this suit is to recover damages for such injury.

The principal complaint on the part of appellant is that the court failed to instruct the jury with reference to an issue as to whether plaintiff was a trespasser. We find no evidence in the record which would have justified the jury in holding plaintiff to be a trespasser on defendant's premises at the place where he was injured. It does not appear that defendant had title to the soil at the place of the accident, and the mere fact that it had built out the shore of the lake at this point by depositing cinders, and was making use of the land thus built out between the alley and the lake would not, as it seems to us, render it unlawful for persons to go along the shore of the lake for purposes not involving any interference with such use of the made land by defendant as it was making in connection with its plant. The instruction of the court, given at the request of defendant, that defendant had the right to use and occupy the premises and to drive trespassers therefrom does not amount, as we think, to the announcement by the court as the law of the case of the conclusion that plaintiff was a trespasser in fishing along the shore of the lake.

However this may be, the court submitted the case to the jury on the theory that if they found defendant, through its agents and employes knew that men and boys were frequently, during the fishing season, engaged in fishing at the rear of the works and in the vicinity of the place where the blow-off pipe of defendant discharged, and knew that such persons were likely to be in the vicinity of the end of the pipe at any time during the day, and, notwithstanding such knowledge, without warning violently blew off the steam from its boilers through such pipe thereby injuring the plaintiff, and that this act of blowing off steam without warning was in wanton disregard of the safety of persons whom the defendant had reason to believe might be in the vicinity of the end of said pipe and be injured by reason of such discharge of steam, then they were to determine whether or not the defendant was negligent in causing the discharge of steam which injured...