Le Duc v. Detroit Edison Co.

• Decision Date: 07 April 1931
• Docket Number: No. 15.,15.
• Citation: 254 Mich. 86,235 N.W. 832
• Parties: LE DUC v. DETROIT EDISON CO.
• Court: Michigan Supreme Court

254 Mich. 86

235 N.W. 832

LE DUC

v.DETROIT EDISON CO.

No. 15.

Supreme Court of Michigan.

April 7, 1931.

Error to Circuit Court, Wayne County; Fred S. Lamb, Judge.

Action by Emil Le Duc, administrator of the estate of James Le Duc, deceased, against the Detroit Edison Company. Judgment for defendant, and plaintiff brings error.

Affirmed.

Argued before the Entire Bench.Monaghan, Crowley, Reilley & Kellogg, of Detroit (Edward T. Kelley, of Detroit, of counsel), for appellant.

Oxtoby, Robison & Hull, of Detroit, for appellee.

FEAD, J.

The action is for negligence in causing the death of James Le Duc, 6 years old. Defendant had directed verdict.

A vacant lot in Detroit had been used as a playground by the neighborhood children for some years. In the fall, the boys would cut and burn the grass and weeds, the city would flood the lot with water, and nature would make a skating rink. For a few days prior to Sunday, November 28, 1926, defendant had been engaged in repair work in the street corner immediately adjoining the lot. In the course of its operations it used a work cart, holding a supply of gasoline. The faucet was operated by a removable key, and could be opened by such a key as is used in the home on water taps. On Saturday, the cart was left for the week-end on the parkway between the sidewalk and street, on the same side as the vacant lot, but across an alley.

Sunday afternoon, 15 to 20 boys, ranging from 14 years of age down, were engaged in pulling and burning grass and weeds on the lot. An 8 year old boy had a mouse in a bottle and was using a water key as a stopper. Some one of the boys suggested they get gasoline to aid the burning. One of the older boys, unidentified, took the water key from the boy with the mouse, and several gathered cans near by, went to defendant's cart, the older boy opened the faucet, and many carried gasoline to the fire. James Le Duc came up and watched the burning, but had no part in it. As a 10 year old boy was bringing a can of gasoline to the lot, a 14 year old boy tried to take it from him; in the struggle he struck the can, the contents splashed over James, caught fire, and he was burned so severely he died from the injuries.

We are unable to find in the record any testimony supporting the claim that there had been a fire on the lot while defendant's employees were working in the vicinity, nor that they had seen any children burning weeds or grass thereon at any time.

The case takes us into the field of ‘attractive nuisances' and related law, upon which the conflict of judicial opinion ranges from ostensible repudiation of the doctrine to its acceptance to an extreme degree. All sorts of instrumentalities and conditions have been held attractive nuisances, from the most common objects to a charming girl. Johnson v. Atlas Supply Co. (Tex. Civ. App.) 183 S. W. 31. The liberal decisions took impetus from the so-called ‘turntable cases,’ Sioux City & P. Railroad Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745, from which later, however, the court found it proper to partially recede, United Zinc & Chemical Co. v. Britt, 258 U. S. 268, 42 S. Ct. 299, 66 L. Ed. 615, 36 A. L. R. 28. And several of the courts have expressed the opinion that the doctrine has gone too far and should be restricted rather than extended. The subject is exhaustively annotated in notes in 36 A. L. R. 34; 39 A. L. R. 486; 45 A. L. R. 982; 53 A. L. R. 1344; 60 A. L. R. 1444.

This court has recognized and applied, but conservatively, the law of attractive nuisances. The doctrine has not been permitted to seriously impair the rule that a property owner owes no duty to protect trespassers, adult or infant, from injury other than wanton or willful, as has been done in some states.

The attractive nuisance doctrine was announced in Powers v. Harlow, 53 Mich. 507, 19 N. W. 257,51 Am. Rep. 154, but seems to have hibernated for a season. The turntable cases were expressly disapproved in Ryan v. Towar, 128 Mich. 463, 87 N. W. 644,55 L. R. A. 310, 92 Am. St. Rep. 481, and the trespass rule was applied to children both in going upon real property, Peninsular Trust Co. v. Grand Rapids, 131 Mich. 571, 92 N. W. 38, and in playing upon a flat car in the street, Kaumeier v. City Electric Ry. Co., 116 Mich. 306, 74 N. W. 481,40 L. R. A. 385, 72 Am. St. Rep. 525. See, also, Stark v. Muskegon Traction & Lighting Co., 141 Mich. 575, 104 N. W. 1100,1 L. R. A. (N. S.) 822;Preston v. Austin, 206 Mich. 194, 172 N. W. 377.

Both doctrines were considered in O'Leary v. Michigan State Telephone Co., 146 Mich. 243, 109 N. W. 434, 436 (two justices dissenting). Defendant was working in the street with block and tackle. The operators knew children were playing about the snatch block, but left it unguarded. A child took hold of the rope near the block while it was at rest, the team was started without warning to the children, and plaintiff's hand was drawn into the pulley. The court differentiated the two lines of cases in these words: ‘The case of Powers v. Harlow is an authority in this state, and is supported by the great weight of authority in this country and in England. The present case differs from Kaumeier v. City Electric Railway and other cases cited in appellant's brief in that here the owner of the property was present, operating the property, and the plaintiff was where he had a right to be. The plaintiff was in the public highway, where he had as much right to be as defendant's employees, and while his laying his hand upon the cable was techically a trespass, it was no more so than taking the exploder cap from the box in the case of Powers v. Harlow. Plaintiff's mere technical trespass did not set in motion, as in the cases cited, the agencies which caused his injury; those agencies were brought into operation and controlled by defendant's employees. There is reasonable ground for distinction between a case where something is left in the highway which can only injure a child by his meddling with it and putting it into operation in the absence of the owner or person having it in charge and a case like the present when the owner is present operating the apparatus and has actual notice that the children are attracted by the tackle and will play with it unless prevented.'

Thereafter the doctrines had a vigorous battle. The court divided evenly in Iamurri v. Saginaw City Gas Co., 148 Mich. 27, 111 N. W. 884, where children climbed on a gas wagon in the street and caused an explosion by dropping a match into an open vent. The trespass rule was applied in Reid v. Harmon, 161 Mich. 51, 125 N. W. 761 (turntable), but the attractive nuisance theory prevailed over it in Anderson v. Newport Mining Co., 202 Mich. 204, 168 N. W. 523, three justices dissenting (dynamite cap), Jaworski v. Detroit Edison Co., 210 Mich. 317, 178 N. W. 71 (poles negligently piled in the street to form a teeter), and Butrick v. Snyder, 236 Mich. 300, 210 N. W. 311 ...