Brady v. Chicago & N.W.R. Co.

• Decision Date: 02 February 1954
• Citation: 265 Wis. 618,62 N.W.2d 415
• Court: Wisconsin Supreme Court
• Parties: BRADY, v. CHICAGO & N. W. R. CO. FRENCH, v. CHICAGO & N. W. R. CO.

Page 415

62 N.W.2d 415

265 Wis. 618

BRADY, v. CHICAGO & N. W. R. CO.

FRENCH, v. CHICAGO & N. W. R. CO.

Supreme Court of Wisconsin.

Feb. 2, 1954.

These are appeals by plaintiffs from judgments dismissing the complaints. On July 10, 1951, Terrance Brady, age 9, Walter French, age 13, and James La Rock, age 13, left their homes in DePere on the east side of the Fox River and walked across the defendant's railroad bridge to the west shore. They then went to a dump on the west shore to play. When they heard the noon whistles they determined to go home. They started across the railroad bridge, walking on a catwalk outside the car-rails. This catwalk was for the use of trainmen in switching operations and it did not go the full length of the bridge. Its end, over the river, was without any guard or barrier. Before they came to the end of the catwalk, French and La Rock stepped from it to the ties on which the rails were laid and proceeded eastward, walking on the ties. Brady followed the catwalk to its end and then as he attempted to cross over to the ties he lost his balance and fell into the river. French jumped in after him but was unable to rescue him and both boys drowned. The actions are brought by the special administratrices of their estates. The cases were consolidated and were tried to a jury. At the close of the testimony the defendant moved for a directed verdict. The court granted permission to renew the motion later but submitted the cases to the jury upon a consolidated special verdict. After the jury had returned its verdict the defendant renewed its motion, which the court granted. Judgments were entered accordingly, dismissing the complaints. The plaintiffs have appealed.

Additional facts will be stated in the opinion.

Kaftan, Kaftan & Kaftan, Green Bay, for appellants.

E. H. Borgelt and W. J. Roper, Milwaukee, Frederick N. Trowbridge, Green Bay, of counsel, for respondent.

BROWN, Justice.

In their first cause of action plaintiffs allege that the deaths were due to the negligence of the railroad company in failing to fence its right-of-way at the place where the boys entered upon railroad property and proceeded to the bridge. The trial court found as a matter of law that this spot was within the depot grounds and, therefore, the railroad had no duty to fence it, as declared by section 192.33, Stats. Incidentally, the jury reached the same conclusion in its special verdict as a matter of fact. There can be no quarrel with this determination.

Appellants present the case of the Brady boy as one resting on defendant's negligence, modified by the 'attractive nuisance' principle, and the case of Walter French as one in which the 'rescue rule' requires judgment in favor of his estate.

The bridge in question was frequently used by the public of all ages as a place to fish or loaf and as a passage across the river more convenient than the regular highway bridge a short distance away. The defendant tolerated such use and made no effort to prevent it. Under such circumstances the users of the bridge are gratuitous licensees rather than trespassers, but licensees take the premises as they find them and the owner owes them no duty except to refrain from injuring them by active negligence. Brinilson v. Chicago & N. W. R. Co., 1911, 144 Wis. 614, 618, 129 N.W. 664, 32 L.R.A.,N.S., 359; Klix v. Nieman, 1887, 68 Wis. 271, 274, 32 N.W. 223.

'A possessor of land is not subject to liability to his licensees, whether business visitors or gratuitous licensees, for bodily harm caused to them by any dangerous condition thereon, whether natural or artificial, if they know of the condition and realize the risk involved therein.' Restatement, Torts, p. 927, sec. 340.

The plaintiffs have attempted to avoid the application of this principle by asserting that the ages of the children were such that the bridge constituted an attractive nuisance as to them. The attractive nuisance doctrine imposes on an owner a duty to protect trespassers or licensees who are children of tender years greater than that which he would owe to adults under the same circumstances. In granting the motion for a directed verdict the learned trial court stated that the doctrine did not apply because the children were not on the bridge to play there but were using it merely as a short cut. There is much authority for this distinction. 38 Am.Jr., p. 811, sec. 146; Sage's Adm'r v. Creech Coal Co., 1922, 194 Ky, 415, 240 S.W. 42; Hendricks v. Kansas City Southern Ry. Co., 1917, 142 La. 499, 77 So. 130. However, we are controlled by the rule which we first laid down in Angelier v. Red Star Yeast & Products Co., 1934, 215 Wis. 47, 53, 254 N.W. 351, 353, and reaffirmed in Larson v. Equity Co-operative Elevator Co., 1946, 248 Wis. 132, 21 N.W.2d 253. We said:

"* * * that a possessor of real estate should be subjected to liability to a young child who is injured upon his premises if it be found that the former maintained on, or allowed to exist upon his land, an artificial condition which was inherently dangerous to children being upon his premises; that he knew or should have known that children trespassed or were likely to trespass upon his premises; that he realized or should have realized that the structure erected or the artificial condition maintained by him was inherently dangerous to children and involved an unreasonable risk of serious bodily injury or death to them; that the injured child, because of his youth or tender age, did not discover the condition or realize the risk involved in going within the area, or in playing in close proximity to the inherently dangerous condition; and that safeguards could reasonably have been provided which would have obviated the inherent danger without materially interfering with the purpose for which the artificial condition was maintained."

Liability under the rule thus stated is not limited by reason of the child's motive in coming upon the premises. Accordingly we cannot approve the trial court's disposition of the motion on the ground that the children were not attracted to the premises to play there.

We must, then, consider the action of the jury. The court submitted a special verdict which follows, step by step, the rule of the Angelier and Larson cases, supra. The jury's answers were as follows: (1) The defendant was negligent in maintaining its bridge where the accident occurred in a manner inherently dangerous to children. (1-a) This negligence was a cause of the death of Terrance Brady and (1-b) of Walter French. (2) The defendant knew or ought to have known that children were likely to be in its vicinity and (3) should have realized that the bridge was dangerous to children who played on it. (4-a) Terrance Brady did not because of his age fail to discover the condition and realize the risk involved. (4-b) Walter French did not because of his age fail to discover the condition and realize the risk involved. (5) The defendant could have provided safeguards which would have obviated the danger without interfering with the purposes of the bridge.

There were other questions and answers which found that neither boy was attracted to the bridge as a place to play and that each boy was guilty of contributory negligence of ninety per cent causing his death and the railroad of causal negligence...