Herrem v. Konz
| Decision Date | 15 May 1917 |
| Citation | 162 N.W. 654,165 Wis. 574 |
| Parties | HERREM v. KONZ. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Taylor County; G. N. Risjord, Judge.
Action by Alfred Herrem, an infant, by his guardian ad litem, Arnt Herrem, against S. A. Konz, who was engaged in the lumber manufacturing business. From an order sustaining a demurrer to each of the two causes of action, and allowing plaintiff 20 days to amend, plaintiff appeals. Order affirmed as to second cause of action, reversed in other respects, and cause remanded, with directions.
Plaintiff alleges that the main floor of the defendant's mill is raised eight or nine feet above the ground; that there are open spaces underneath the floor of the mill; that an unguarded revolving shaft was located in the open spaces under the mill; and that children of the families living near the mill were in the habit of playing underneath the mill with the knowledge and consent of the defendant.
On September 1, 1914, Alfred Herrem, the plaintiff, a child nine years of age, while playing around the shaft, was caught by the revolving shaft, and was seriously and permanently injured. The plaintiff claims because of his suffering and his permanent injuries he is entitled to recover damages therefor from the defendant, upon the grounds that the defendant was guilty of negligence which proximately caused him the injuries complained of.
Among other allegations the complaint states:
“That there were at all times hereinafter mentioned many families having children of tender age living in the vicinity of the mill, and that said children were in the habit of playing around the saw mill and in the sawdust piles, and were in the habit of going underneath the mill of the defendant and playing in close proximity to said unguarded shaft with the knowledge and consent of the defendant,” and “* * * that solely because of defendant's negligence in failing to guard said shaft, which because of its rapid speed and the darkness of the place was inherently dangerous to children of tender years, and the further negligence in failing to inclose said machinery and space underneath the mill and to take such other precautions as were necessary, the plaintiff became entangled with and wound around said shaft and was severely and permanently injured.”
The facts alleged in the complaint as the first cause of action are repeated in substance as a second cause of action, and declare:
“That solely because of the defendant's gross negligence in failing to guard said shaft and defendant's utter disregard of the safety of the children in said premises the plaintiff became entangled with and wound around said shaft and was severely and permanently injured.”
The defendant demurred to the first alleged cause of action and to the second alleged cause of action on the ground that it appears on the face of the complaint that they do not state facts sufficient to constitute a cause of action. He also demurred to the complaint on the ground that the several causes of action had been improperly united.Martin, Martin & Martin, of Green Bay, for appellant.
Herman Leicht, of Medford, for respondent.
SIEBECKER, J. ...
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...455, 456-457, 69 N.W.2d 608.7 Meyer v. Menominee & Marinette Light & Traction Co. (1912), 151 Wis. 279, 138 N.W. 1008.8 Herrem v. Konz (1917), 165 Wis. 574, 162 N.W. 654.9 Angelier v. Red Star Yeast & Products Co., supra, footnote 5.10 Britten v. City of Eau Claire (1952), 260 Wis. 382, 51 ......
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...used by the public as a promenade or way from which a plank was removed and left out at the place where the child fell in. Herrem v. Konz, 165 Wis. 574, 162 N. W. 654, involved injury to a child from an unprotected revolving shaft in an open space under defendant's mill. In all these cases,......
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...we must assume the complaint to be true, and the allegations must be liberally construed in favor of the plaintiff. Herrem v. Konz, 165 Wis. 577, 162 N. W. 654. The one question before us is, whether the owner is liable for injuries to a little child, enticed upon the land of the owner by i......