Anderson v. Fort Dodge, D.M. & S.R. Co.
| Decision Date | 15 March 1911 |
| Citation | 130 N.W. 391,150 Iowa 465 |
| Parties | DAVID ANDERSON, by his next friend, EMIL ANDERSON, Appellant, v. THE FORT DODGE, DES MOINES & SOUTHERN RAILROAD COMPANY, Appellee |
| Court | Iowa Supreme Court |
Appeal from Boone District Court.--HON. C. G. LEE, Judge.
ACTION at law to recover damages for personal injury. There was a directed verdict and judgment for defendant. Plaintiff appeals.
Affirmed.
Ganoe & Ganoe, for appellant.
Dyer & Hull, for appellee.
The facts which are not seriously in dispute, may be stated as follows: The defendant operates an electric railway through the city of Boone. At or near its station in that city and by the side of one of its tracks the company maintains or uses a storage house or building, the roof of which is about on a level with the roof of an ordinary box car standing on the adjacent track. At the height of four feet above the top of this building there are strung some of the company's electric wires which do not appear to have been protected by insulation. The injury of which plaintiff complains occurred May 22, 1909. He was then a lad of twelve years and three months. On the evening in question a box car was standing near the storage building, and plaintiff, with three other boys, was idling or playing, in that vicinity. Climbing to the top of the box car, one of his companions dared or "stumped" plaintiff to follow him, and jumped across the intervening space to the roof of the building. Plaintiff performed the feat, and in turning to jump back again came into contact with a wire, receiving a severe shock, and, as he claims, resulting injury. Recovery of damages from the defendant is demanded on the theory that it was negligent in the construction and maintenance of the building and track and in its manner of caring for and managing its said premises; that it was also negligent, in that with knowledge of the danger to be apprehended from said wires it placed and left its cars in such manner as to invite children to play thereon, and expose them to injury; and that it was further negligent in leaving the wires uncovered without notice or warning to put the plaintiff or other persons passing that way upon their guard to avoid injury. These allegation are stated with many repetitions, but to the same substantial effect. The plaintiff, who seems to be a boy of average intelligence and quickness of perception, says he and other boys had frequently been at our about this railway station, and had there indulged in more or less of youthful sport and play. They had at times jumped back and forth between the station platform and standing cars, but so far as the record shows, had never before attempted the jump from a car top to the roof of the storage building. He says he did not play there thinking he had any right to do so, and knew the railway men would drive him off if they saw him. It does not appear that he was aware of the wires strung above the roof, and either from heedlessness or from the darkness of the evening failed to discover them before his injury although he says he knew there was danger in electric wires. The testimony of the boys who were playing with plaintiff at the time of his injury corroborates his story in most respects. The evidence tends to show that the wires were not insulated, and were not guarded to prevent contact with them by any person crossing the roof, and no warning notice was posted there. There was also expert testimony that the defendant's wires were strung lower than is usually done in building such systems, and that they are "too low to be safe." The motion for a directed verdict which the trial court sustained was based on the grounds: (1) That the evidence did not tend to show negligence on the part of the defendant. (2) That the evidence did show plaintiff to have contributed to his injury by his own recklessness and negligence. (3) That plaintiff at the time of his injury was a trespasser and upon defendant's premises without license, and that defendant owed him no duty or care under the circumstances as shown and admitted by his own testimony.
Giving plaintiff the benefit of the most favorable construction which can be placed upon the testimony, we are compelled to hold that he failed to make a case...
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