Coffey v. Oscar Mayer & Co.
| Decision Date | 11 May 1948 |
| Citation | 252 Wis. 473,32 N.W.2d 235 |
| Parties | COFFEY et al. v. OSCAR MAYER & CO. et al. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from an order of the Circuit Court of Dane County; Alvin C. Reis, Circuit Judge.
Reversed.
This action was begun on the 2nd day of September, 1947, by Mary L. Coffey and Marion Coffey, plaintiffs, against Oscar Mayer & Company, and its insurance carrier, defendants, to recover damages for the death of the child of the plaintiffs by reason of the negligence of the defendant. Two causes of action are stated, one to recover the sum of $4,377 funeral expenses and loss of earnings of the deceased child, second cause upon the same facts to recover damages in the sum of $2,500 for loss of society and companionship. The defendants demurred to the complaint and an order was entered on November 5, 1947, overruling the demurrer, from which the defendants appeal. The facts will be stated in the opinion.
Wilkie, Toebaas, Hart, Kraege & Jackman, of Madison (Hugh F. Oldenburg, of Madison, of counsel), for appellants.
Maloney & Wheeler, of Madison, for respondents.
After the formal allegations in the complaint stating the residence, etc. of the plaintiffs, their relation to the deceased child, that the defendant Oscar Mayer & Company is a corporation engaged in the business of distributing at retail ice in the city of Madison and its environs; that the Hartford Accident and Indemnity Company is the insurance carrier of the defendant Oscar Mayer & Company, it is alleged in the complaint:
‘That on June 20, 1947, the defendant through its employee, Oren G. Ellingson, knew that the manner of operation of its ice truck on Whities Street in Truax Field consisted of short hauls, with stops at intervals of approximately every sixty feet, and slow speeds between stops of approximately five miles per hour was likely to and did on previous days naturally attract and induce children of tender age, who followed the ice truck to procure ice chips for personal consumption, to attempt to and who did ride on such truck between stops; that said Whities Street in the 2400 block was densely populated with small children who congregated frequently around the ice truck collecting ice chips.
‘That on June 20, 1947, the defendant through its employee, Oren G. Ellingson knew or should have known that permitting or failing to prevent small children of tender age to ride on the ice truck was inherently dangerous to such children due to dangers of the limited physical capacity of such children causing them to fall from the truck upon the pavement or being struck by parts of said truck in falling involving an unreasonable risk of serious bodily injury or death to them while riding upon the truck to which they were lured by the mode of operation.
‘That on June 20, 1947, the defendant through its employee, Oren G. Ellingson, knew that numerous small children of seven years of age and less had been following the ice truck for several stops previous to the stop at 2428 Whities Street and had on at least one prior stop at 2426 Whities Street been seated on the right hand running board of the truck when Ellingson returned to the truck from delivering ice and that he had to tell them to get off the truck.
‘That on June 20, 1947, when Ellingson stopped the ice truck at 2428 Whities Street he was unable to deliver the ice at the apartment, because the patron was not at home, and when he returned to the truck with the ice the deceased, Daniel Coffey, and his three brothers were seated on the right hand running board of the truck; that Ellingson told the children to get off the truck which they did to Ellingson's knowledge by stepping a few steps away, directly opposite the right hand door and window of the truck cab; that Ellingson returned the ice to the rear of the truck and proceeded to the left hand side of the truck entering the cab of the truck, starting the engine and placing he truck in motion, carelessly and negligently failing to make any further effort to determine whether the children had remained off the truck in the position they had assumed to his knowledge; that Ellingson carelessly and negligently failed to look out of the right hand window to see if the children were still standing opposite the right hand side of the truck cab and free from the dangers of the moving truck before placing the truck in motion; that such carelessness and negligence was the proximate cause of the death of Daniel Coffey.'
It is then alleged that Daniel, the deceased, Marvin, aged 7, Melvin, aged 6, and Allen, aged 5, again climbed on the right hand running board and were there seated when Ellingson put the truck in motion. That Daniel fell while the truck was in motion and was instantly killed. That Daniel was not negligent. In addition to these there are other supporting allegations which are not material upon the consideration of the issues raised by the demurrer.
It is the contention of the defendants, first, that the duty owed by driver to the deceased under the circumstances of this case was one of ordinary care. Second, that the driver of a truck is not responsible unless he knew of the danger to children or should have known it if he had kept a proper lookout.
Plaintiff contends, first, that the principles of attractive nuisance are applicable to the operation of the vehicle in question and make it the duty of the driver of the truck to anticipate childish impulses. Second, that the truck in question was, under the circumstances of this case, an attractive nuisance and that under the circumstancesthe law regarding attractive nuisances is applicable under the facts of this case. Third, that it is a jury question whether safeguards could have reasonably been adopted to keep children free from danger zone.
We shall first consider whether the operation of the truck on the street in question under the circumstances of this case made the truck an ‘attractive nuisance.’ This court in Schulte v. Willow River Power Co., 1940, 234 Wis. 188, 290 N.W. 629, 630, said:
‘This doctrine (attractive nuisance), speaking broadly, is that a liablity is imposed upon those maintaining inherently dangerous structures or instrumentalities for injuries sustained by children of tender years, who to the knowledge of those maintaining them, are injured while playing on or about them.'
Is an ordinary ice truck, being used in the regular course of the defendant's business in the distribution of its product to customers, an inherently dangerous instrumentality? In Rapczynski v. W. T. Cowan, Inc., 138 Pa.Super. 392, 10 A.2d 810, 815, the court said:
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