Gimmestad v. Rose Bros. Co.

• Decision Date: 31 May 1935
• Docket Number: No. 30399.,30399.
• Citation: Gimmestad v. Rose Bros. Co., 194 Minn. 531, 261 N.W. 194 (Minn. 1935)
• Parties: GIMMESTAD v. ROSE BROS. CO. et al.
• Court: Minnesota Supreme Court

261 N.W. 194

194 Minn. 531

GIMMESTAD v. ROSE BROS. CO. et al.

No. 30399.

Supreme Court of Minnesota.

May 31, 1935.

Appeal from District Court, Hennepin County; Winfield W. Bardwell, Judge.

Action by Donald Merle Gimmestad, also known as Donald Merle Preiss, a minor, by Alice Preiss, as mother and natural guardian, against the Rose Bros. Company and others. From an adverse judgment, defendants appeal.

Affirmed.

Robb, Rich & Reynolds, of Minneapolis, for appellants.

Robert J. McDonald, Irving H. Green, and H. Z. Mendow, all of Minneapolis, for respondent.

JULIUS J. OLSON, Justice.

In this, a negligence case, plaintiff prevailed below. The action was brought by Alice Preiss, as mother and natural guardian of her minor son Donald, who was five years of age at the time of the accident which furnishes the basis for the alleged cause. Defendants were unsuccessful upon their motion for judgment notwithstanding, and they have appealed from the judgment thereafter entered. The evidence in the case would justify a jury in finding the following facts: Defendants are engaged in the business of wrecking buildings and other structures. The place where building material, such as lumber, brick, and other articles salvaged from their wrecking operations, was sorted and stored is the block occupying the space between Fourth avenue on the north, Fremont avenue on the east, Glenwood avenue on the south, and Girard avenue on the west in north Minneapolis. Only a part of this real estate is owned by defendants. The rest of the area is used by them under some arrangement with the owners. Not only was the space aforesaid used and occupied by defendants for the piling and depositing of lumber, brick, and other building material, but was also used for storage of considerable quantities of machinery, automobile and truck bodies, culverts, and other property. The building material was placed upon this property in piles of irregular sizes and shapes and of decidedly uncertain stability. Workmen employed by defendants sorted these various items of material salvaging what was worthwhile and discarding the worthless. In so sorting this material there was necessarily a considerable amount thrown aside or imperfectly piled. Because of the location of this property and the use to which it was put, children were accustomed to gather there in play. There were several paths and shortcuts across portions of the block not actually occupied by defendants' material. That defendants were apprehensive of danger to children appears from the evidence of their own witnesses who testified that they frequently chased the children off the premises. In fact they engaged a watchman who lived in the neighborhood to keep a watchful eye upon this property and to keep children away so as to avoid possible danger to them. Sundays in particular were the "days of real sport" for children of the neighborhood to come together for play upon this property. The injured boy involved in the present case was playing with three other children about his own age. They climbed upon and over a pile of insecurely placed lumber. Three of the children had gotten over the pile before it slid over but the infant plaintiff suffered injuries of such nature and to such extent as to leave free from criticism here the amount of recovery. Liability was predicated upon the theory that defendants failed to exercise reasonable care in piling their lumber and other material; that defendants knew that this location was used extensively by children who came there to play; that notwithstanding such knowledge they failed to fence or otherwise guard the premises against children who would naturally be attracted to this spot because of its location and by reason of the kind, nature, and extent of the business being operated by defendants thereat. Other charges of negligence were made but for our purpose these may be disregarded.

When the parties rested defendants moved for an instructed verdict upon the alleged ground that no actionable negligence had been shown. The court submitted the case to the jury upon the theory that if defendants failed to exercise reasonable care in operating and maintaining their premises and if by their conduct they had permitted children to be and to play upon the premises, under the circumstances hereinbefore related, the jury might find defendants liable in damages. But such liability could not be imposed unless the injured child came upon the premises "by invitation, either direct or implied, with the knowledge and consent of defendants." Plaintiff sought to bring the case within the attractive nuisance doctrine, but it was not submitted to the jury upon that theory. The only basis for liability submitted to the jury was failure on defendants' part to use reasonable care in view of the circumstances. So the question is squarely presented, Do the facts above related justify a finding of actionable negligence?

1. The review here is limited to a very narrow field. The rule is well settled that when "defendant rests upon its motion for judgment without asking for a new trial, errors at the trial, whether in the rulings or in the instructions to the jury, cannot be reviewed or considered. The only question for consideration is whether it clearly appears from the record that plaintiff is not entitled to recover." Smith v. Gray Motor Co., 169 Minn. 45, 46, 47, 210 N. W. 618, 619; Thom v. Northern Pacific Ry. Co., 190 Minn. 622, 252 N. W. 660; 3 Dunnell Minn. Dig. (2d Ed. & Supps. 1932, 1934) § 5085; Eichler v. Equity Farms, Inc. (Minn.) 259 N. W. 545; Oxborough v. Murphy Transfer & Storage Co. (Minn.) 260 N. W. 305.

2. "The question is one of negligence — whether particular circumstances gave rise to a duty which had not been performed." Best, Adm'r, v. District of Columbia, 291 U. S. 411, 54 S. Ct. 487, 490, 78 L. Ed. 882, 887. We think the jury could well find that this kind of material (placed on a lot bounded by public streets on all four sides and over which were several diagonal paths used by children and adults alike) constituted an alluring and enticing bait, a temptation more compelling than an invitation, and as such would naturally attract children and cause them to drift away from the paths of safety to those of imminent danger. "While `temptation is not invitation, it may be held that knowingly to establish and expose, unfenced, to children of an age when they follow a bait as mechanically as a fish, something that is certain to attract them, has the legal effect of an invitation to them although not to an adult.'" Here the duty of defendants must necessarily "find its source in special circumstances in which, by reason of the inducement and of the fact that visits of children to the place would...