Gubalke v. Anthes' Estate

• Court: Nebraska Supreme Court
• Writing for the Court: Heard before WHITE; CLINTON; BOSLAUGH
• Citation: Gubalke v. Anthes' Estate, 202 N.W.2d 836, 189 Neb. 385 (Neb. 1972)
• Decision Date: 15 December 1972
• Docket Number: No. 38422,38422
• Parties: John GUBALKE, father and next friend of Joseph Gubalke, a minor, Appellant, v. ESTATE of Rueben G. ANTHES and Anna Anthes, Appellees.

Page 836

202 N.W.2d 836

189 Neb. 385

John GUBALKE, father and next friend of Joseph Gubalke, a minor, Appellant, v. ESTATE of Rueben G. ANTHES and Anna Anthes, Appellees.

No. 38422.

Supreme Court of Nebraska.

Dec. 15, 1972.

Syllabus by the Court

1. A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artifical condition upon the land if: (a) The place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass; (b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children; (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it; (d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved; and (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

2. In order that an ordinance or statute be relevant on an issue of a standard of care, it must have been in effect at the time of the claimed violation and by its terms be applicable to the situation.

Alfred A. Fiedler, Fiedler & Fiedler, Omaha, for appellant.

Richard Jeffries, Emil F. Sodoro, Ronald H. Stave, Omaha, for appellees.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.

CLINTON, Justice.

This is an action brought by the plaintiff as father and next friend of Joseph Gubalke to recover for personal injury, consisting of the loss of an eye, to Joseph then 7 years of age, allegedly caused by the negligence of the defendants in installing and maintaining on residential property which they occupied a chain link fence, the upper edge of which was 'raw.' The injury occurred when Joseph ran or slipped into the fence while playing. At the close of the plaintiff's evidence, the trial court sustained the motion of the defendants for a directed verdict. The errors assigned, insofar as they require consideration on this appeal, are: (1) Refusal of the trial court to submit the case to the jury; and (2) refusal of the trial court to receive into evidence a purported copy of a building permit issued by the city of Omaha authorizing the construction of the fence, and the refusal of the trial court to receive a purported copy of an ordinance of the city of Omaha regulating the construction of fences. We affirm.

The evidence was sufficient to permit a jury to find as follows: The defendants were the occupants on September 13, 1967, the date of the accident, of the property on which the fence was constructed and maintained; the upper edge of the wire mesh extended an inch or two above the upper horizontal tubing on which the mesh was mounted and this exposed edge consisted of intertwined ends of the wire of which the mesh was made; the tips of the intertwining wires made a 'Y' consisting of the sharp ends of two wires; the fence was located on the street side of the defendants' home about midway between the street curb and the side of the house, and on the approximate upper edge of a grassed embankment which rose gently from the curb to the general yard level; and children sometimes walked or played on this embankment and the defendants made no objection. The record does not show whether the fence was located at the defendants' property line or within it. The property occupied by defendants had no sidewalk on the fence side and the embankment does not appear to have been used as a walkway. The evidence further would permit a jury to find that on the evening of the accident in question Joseph and two of his companions were playing 1 block east of the property occupied by the defendants; and that in the course of play, Joseph, while being chased by a companion, ran down the street towards the defendants' house, up the embankment, and into the fence, striking his right eye on one of the exposed ends, injuring it, and necessitating after a period of several months its removal and replacement with a prosthesis.

The evidence disclosed that Joseph knew of the existence of the fence from having played adjacent to it and that he 'forgot the fence was there and . . . ran into it.' The fence had been there as long as Joseph and an older sister, age 16 at the time of the accident, who had lived in the neighborhood since birth, could remember. The actual date of the construction of the fence is not shown. The height of the fence is not shown and cannot be ascertained accurately from the photographic exhibits. Joseph testified that the top of the fence at the time of the accident came about to his eye level or 'a little bit down.' His height at the time of the accident is not shown but at the time of trial, November 11, 1971, he was about 4 feet 10 inches tall.

The plaintiff offered into evidence a copy of building permit signed by one Ray DuBois, as applicant, for a chain link fence upon property purportedly owned by R. G. Anthes at 5069 South 40th Street in Omaha. This is the address the evidence shows is that of the defendants. The permit bears date of 11--10--59. Plaintiff also offered a copy of an ordinance of the city of Omaha making it unlawful to 'erect or construct any fence . . . except as provided for.' An amendment of this ordinance, upon which the plaintiff relies, has an effective date of 15 days after February 21, 1961, and provides: 'Any such fence . . . shall not have barbed selvage at its top, nor be more than four feet in height above the ground level.' The amendment permits fences with barbed selvage at the top if the fence is more than 5 feet high and if a permit therefor is obtained from the public safety department. Webster's Third New International Dictionary, Unabridged, p. 2062, indicates that selvage is the cut edge of a material.

We will first deal with the question of the propriety of the ruling of the court on the offer of the building permit and the ordinance. As to the building permit the court sustained the objection on the grounds of lack of foundation. The plaintiff does not discuss his theory of the relevance of the building permit. Our examination of the instrument indicates it does not have relevance to the issues of the case. It does indicate that R. G. Anthes is the owner of the property in question and if we assume it was competent evidence of ownership it is still irrelevant. Other evidence shows the defendants were the occupiers and possessors of the premises. Proof of ownership would at most be merely cumulative. Whatever duties the defendants may have had devolved upon them by virtue of their occupation and possession of the premises. Prosser, Law of Torts (4th Ed.), §§ 57, 59, pp. 351, 364; Restatement, Torts 2d, § 333, p. 183; Presho v. J. M. McDonald Co., 181 Neb. 840, 151 N.W.2d 451. There was no error in the rejection of the building permit.

An examination of the proffered ordinance reveals that the pertinent provisions of the ordinance became effective, as we have already noted, 15 days after February 21, 1961. The ordinance pertains only to the erection and construction of fences and has no application as to fences constructed prior to the effective date. The date the fence was constructed is not shown by the evidence. It is the usual rule that in order that an ordinance or statute be relevant on the issue of a standard of care, it must have been in effect at the time of the claimed violation and by its terms be applicable to the situation to which it is sought to be applied. Chicago Lumber Co. v. Gibson, 179 Neb. 461, 138 N.W.2d 832; Cronk v. Iowa Power & Light Co., 258 Iowa 603, 138 N.W.2d 843; Ellis v. Caprice, 96 N.J.Super. 539, 233 A.2d 654; Akins v. County of Sonoma, 67 Cal.2d 185, 60 Cal.Rptr. 499, 430 P.2d 57; Klein v. Montgomery Ward & Co., 235 Or. 315, 384 P.2d 978. The court did not err in the rejection of the ordinance as evidence.

Was the evidence otherwise sufficient to present a jury issue? Neither party...