Cogswell v. Warren Bros. Road Co.

• Decision Date: 03 May 1967
• Citation: 229 A.2d 215
• Parties: Jamie R. COGSWELL by her father and next friend, Edward F. Cogswell, and Edward F. Cogswell, Individually, v. WARREN BROTHERS ROAD CO.
• Court: Maine Supreme Court

Page 215

229 A.2d 215

Jamie R. COGSWELL by her father and next friend, Edward F Cogswell, and Edward F. Cogswell, Individually, v. WARREN BROTHERS ROAD CO.

Supreme Judicial Court of Maine.

May 3, 1967.

Berman, Berman, Wernick & Flaherty, by Theodore H. Kurtz and Sidney W. Wernick, Portland, for appellant.

Mahoney, Thomes, Desmond & Mahoney, by James R. Desmond and David G. Armstrong, Portland, for defendant.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, MARDEN, RUDMAN and DUFRESNE, JJ.

MARDEN, Justice.

On appeal. The case arises from complaint by a minor plaintiff and her parent seeking to recover damages for personal injury. The complaint charges defendant with having negligently parked a flat bed trailer in a street, by virtue of which negligence plaintiff was injured. Undisputed facts establish that on the day in question the defendant, by its employees, who were to work in the vicinity, parked at about 7:30 a. m. a single axle, dual wheel, flat bed trailer, upon a public street in the City of Portland, the street and the position thereon chosen as sufficiently level as to not cause it to roll. Its position was generally parallel to the street line, with front to the north and rear to the south. It was not blocked to prevent the body from rotating on its axle. The size and weight of the vehicle is not given, but it was of such dimensions and construction as to transport a 3 ton roller used in paving. Its general character appears in a photographic exhibit. At the time of parking, there were no persons, other than the custodian of the trailer, in the area. By the circumstance of street location and land use in the vicinity, there were in the immediate area ten dwellings, two of which were two-family homes, in which group of residences about 22 children not older than 10 years lived. There is nothing to suggest that defendant had knowledge of this child population. The place where the trailer was left was not visible from the job site. The single axle of the trailer was so positioned from the front to the rear of the flat body that upon detachment of the trailer from the towing vehicle, gravity would cause the front end to drop to and rest upon the ground. The trailer was left in that position and not under observation by defendant.

Between the time the trailer was parked and the time of the accident, which occurred about 1:00 p. m., three mothers in the neighborhood observed the trailer and the presence of children upon or near it. Due to the fact that the times overlapped during which these witnesses observed the trailer, we cannot relate their observations with exact chronology.

Witness A observed the trailer at about the time it was parked and during that morning, and on several occasions, saw children on the trailer and observed that by the children's moving from one end of the trailer to the other, it acted like a see-saw, with the single axle as the fulcrum. On the first occasion there were two children and she told them to get off. Later in the morning, she saw three children on the trailer, with the plaintiff standing 'a step away' from the left side of the trailer and to the rear of the axle. She told the children to get off. She entered her home and 'no more than five minutes' later she was apprised of the accident and saw the plaintiff to the rear of the trailer with the end of it across her thighs.

Witness B shortly before the accident, at a time which she places as between 1:00 p. m. and 2:30 p. m., and while enroute to a neighbor's home, saw three children, the oldest being about five years old, running on the trailer causing it to act as a seesaw, with plaintiff standing 'right at the end of the trailer' or 'about twelve inches away from it' and facing north. At that time the front of the trailer was on the ground.

Witness C arrived home from business errands after 12:00 noon, saw four children on the trailer, including the plaintiff, and told the plaintiff to get off, which she did. She entered her home and from windows overlooking the scene, proceeded to prepare lunch and talk with Witness A, who had come in, and during the period of ten to fifteen minutes she saw three children playing on the trailer, with the plaintiff standing by. She turned away from the window and in 'split seconds,' 'just a matter of seconds,' 'two or three (seconds)' she heard a scream and saw plaintiff in a sitting position facing north with the rear end of the trailer across her thighs. ¹

There is conflict in the testimony as to whether the trailer was trigged to prevent its rolling.

Seasonably the defense moved for a directed verdict, both at the close of plaintiff's case and at the close of the case, urging insufficient proof that the injuries of the plaintiff were the proximate result of any negligence on the part of the defendant. Rulings on these motions were reserved.

The case was submitted to the jury, with instructions that if it found that the plaintiff were a trespasser, or participant in the play on the trailer, the defendant owed her no duty except to refrain from willful, reckless or wanton conduct, but that if she were not a trespasser, or participant in the play, the defendant owed her a duty of due care, and further that if plaintiff were determined to be a trespasser, or participant in the play, there was, as a matter of law, no evidence of wanton, willful, or reckless acts of negligence and the defendant would be entitled to a verdict. Instructions requested by the plaintiff bearing upon the defendant's duty of due care, in any event, were refused. Following approximately six hours deliberation, without agreement, during which time requests by the jury for instructions on 'trespassing' and 'participation,' the court withdrew the case from the jury and directed a verdict for the defendant, upon the ground that the jury could arrive at a conclusion as to what the child was doing at the time of her injury, and thereby determine whether or not she was a trespasser, or trespass-participant, only by guess or speculation, which being legally impermissible, justified the direction of a verdict.

Plaintiff appeals upon five points, two of which control, (1) that direction of the verdict was error, and (2) that the instruction that the plaintiff, if a trespasser or participant, could impose liability only by showing wanton, willful or reckless negligence on the part of the defendant, was error.

Decision on the first point alone would encompass the second and would dispose adequately of the appeal, but inasmuch as the duty of care owed a trespasser on personal property in a public street has not been fixed, we shall consider point two as well,-and first.

The standard of care required of a defendant, according to the view expressed by the presiding Justice, depended upon the status of the plaintiff,-as a trespasser, or trespass-participant, or a non-trespasser, or non-trespass-participant. ² We have hitherto had no occasion to consider whether the duty of an owner or custodian of personal property lawfully placed in an area open to the public depends upon the legal status of the injured party.

As applied to minor plaintiffs, the first doctrine which comes to mind is that in the so-called 'turn table' cases, originating in Railroad Company v. Stout (1874) 17 Wall. (U.S.) 657, 21 L.Ed. 745 and since referred to as the doctrine of the 'attractive nuisance.' See Annot. 36 A.L.R. 34 and supplemental annotations to and including 3 A.L.R.2d 758. Some jurisdictions hold that the nature of an installation or equipment on a person's land may so attract children that they are lured, impliedly invited, onto the premises and thereby assume the legal status of invitees, whereby the land owner owes them a duty of due care, as distinguished from the intruder, the trespasser, to whom is owed only a duty to refrain from wanton, willful or reckless acts of negligence.

Maine has refused to adopt this doctrine, as appears most recently in Lawrence v. Larson, 156 Me. 168, 163 A.2d 364, following Lewis v. Mains, 150 Me. 75, 104 A.2d 432, and previous cases. Furthermore, as to the individual, including a minor child, who enters upon real property of another without right or permission, we have declared that such person is owed only a duty to refrain from wanton, willful or reckless acts of negligence. Nelson v. Burnham & Morrill Co., 114 Me. 213, 218, 95 A. 1029, and as to personal property see Elie v. Lewiston, Augusta & Waterville Street Railway, 112 Me. 178, 91 A. 786, L.R.A.1916C, 104 (child stealing ride on moving car). The Elie opinion does not disclose whether the moving car was upon a public street as distinct from the railway easement, but the briefs indicate that the car was on a public street.

If Maine is to apply Lewis, supra, only to those entering without invitation the premises of another, and Elie, supra, only to those mounting a moving trolley car, the instruction to the jury was in error. As a matter of public policy, we are prepared to announce this ruling as applicable to trespassers to personal property in public domain. Uncontrolled and undisciplined children trespass with impunity and as a matter of policy the public should not be required substantially to assume unlimited responsibility for their safety. On who enters upon, remains upon or uses personal property of another without that other's consent or legal right so to do is a trespasser. See Williams v. J. B. Levert Land Company, Inc., La. Ct. of Appeal, 162 So.2d 53, (1, 2) 58, 1964, (certiorari denied, 245 La. 1081, 162 So.2d 574); and McVicar v. W. R. Arthur & Company (Mo.1958) 312 S.W.2d 805(6), 812(8), 813, 65 A.L.R.2d 785.

This declaration is but a natural extension of the law of Lewis and Elie, supra, where in Lewis the court said:

'Sympathy is quickly aroused by the injuries of a child, and that emotion is both natural and proper. In such a mood, courts have sometimes substituted moral or sentimental obligations for...