Compty v. C. H. Starke Dredge & Dock Co.

• Court: Wisconsin Supreme Court
• Writing for the Court: DODGE
• Citation: Compty v. C. H. Starke Dredge & Dock Co., 129 Wis. 622, 109 N.W. 650 (Wis. 1906)
• Decision Date: 07 November 1906
• Parties: COMPTY v. C. H. STARKE DREDGE & DOCK CO.

129 Wis. 622

109 N.W. 650

COMPTY

v.C. H. STARKE DREDGE & DOCK CO.

Supreme Court of Wisconsin.

Nov. 7, 1906.

Appeal from Circuit Court, Milwaukee County; Lawrence W. Halsey, Judge.

Action by Emmett Compty, by his guardian, etc., against C. H. Starke Dredge & Dock Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Defendant was engaged by contract in the driving of foundation piles within the limits of property of its employer at the southeast corner of Michigan and Jefferson streets in Milwaukee, and for that purpose had a number of piles scattered along opposite said property upon the easterly side of Jefferson street. People were in the habit of passing along such street, and children were often present, either in passing or in play. While defendant was engaged in driving a pile, the plaintiff, aged 2 years and 10 months, in company with two other boys, was seated upon one of the logs within the limits of the street, and had been from 5 to 15 minutes, according to varying testimony. Soon after commencing to drive the pile at the second or third stroke or later, the pile broke transversely in two or three places, such breakage being apparent to observation. Thereupon another blow was struck, whereupon one of the sections of the broken pile flew out of the pile driver and fell upon the plaintiff, causing him severe injury. In an action for damages charging negligence of the defendant, a general verdict was rendered in favor of the plaintiff, after overruling motion for nonsuit and for direction of verdict in favor of the defendant. After denial of motion for a new trial, judgment was rendered upon verdict in favor of the plaintiff, from which the defendant brings this appeal.C. H. Van Alstine, for appellant.

Vilas, Vilas & Freeman, for respondent.

DODGE, J. (after stating the facts).

The sole assignment of error is upon refusal to order nonsuit or to direct verdict for defendant, which rests upon the contentions that no negligence was proved against it, that it is liable only for gross negligence, and that contributory negligence was established against plaintiff's mother. Of course, as appellant argues, mere carelessness is not ground of liability, unless a breach of some duty to others and committed under such circumstances as to render injury to the person or rights of another probable. Everyone, however, owes a duty to exercise due care whenever negligence is likely, to the apprehension of an ordinarily intelligent and prudent person, to injure another in his lawful rights. There is abundant evidence of the frequent presence in Jefferson street, to the knowledge of the defendant's operatives, of people passing or pausing there in such proximity to the pile driver as to be in peril from flying portions of piles, should they break. Hence the reasonable anticipation of some injury from such an event might by the jury have been found. But, appellant argues, no duty rested upon defendant toward such people, except to refrain from gross negligence, for they were trespassers; and this because, by the exercise of defendant's lawful right to place in the street building materials inconsistent with occupation thereof for travel, it had temporarily ceased to be subject to such latter use. True, some limited right in the lot owner to incumber an adjoining street with building materials is recognized. Hundhausen v. Bond, 36 Wis. 29;Raymond v. Keseberg, 84 Wis. 302, 54 N. W. 612, 19 L. R. A. 643. The exercise of such right does not, however, transpose the street into private property. It is merely one of the lawful uses of the space as a public street, and is in deference to the rights of others to make all lawful use thereof. Raymond v. Keseberg, supra; Van O'Linda v. Lothrop, 21 Pick. (Mass.) 292, 32 Am. Dec. 261. The presence of a vehicle in the street, while entirely lawful, is not exclusive of the right of another to be there, nor does such lawfulness absolve the owner from the duty of due care toward the other. Why should lawfulness of building materials have any greater effect? We cannot at all agree with the proposition that, because defendant had placed some materials within the limits of Jefferson street, all others using the street were trespassers, nor that defendant was absolved from the general duty of ordinary care toward them.

At this point counsel further insists that, whatever may be true as to a traveler, one using the street otherwise than for persistent travel is unlawfully using it, and therefore a trespasser, and contends that one standing in the street from motives of curiosity, or a child using the street for purposes of play, is within the application. He cites cases denying liability of municipalities to nontravelers and the definitions of travel there announced; but such cases present little analogy, for they go upon a strict construction of the statute imposing municipal liability, and, while holding that one must be a traveler in order to have the benefit of such statute, by no means decide that every other person is unlawfully within the street or a trespasser. Reed v. City of Madison, 83 Wis. 171, 177, 53 N. W. 547, 17 L. R. A. 733. It is settled that one is not an outlaw merely because engaged in an unlawful act within the street, but is nevertheless entitled to recover for an injury to which...