Lewko v. Chas. Krause Milling Co.

• Decision Date: 05 December 1922
• Citation: 179 Wis. 83,190 N.W. 924
• Parties: LEWKO v. CHAS. KRAUSE MILLING CO.
• Court: Wisconsin Supreme Court

179 Wis. 83

190 N.W. 924

LEWKO

v.CHAS. KRAUSE MILLING CO.

Supreme Court of Wisconsin.

Dec. 5, 1922.

Appeal from Circuit Court, Milwaukee County; Gustave G. Gehrz, Judge.

Action by Anton Lewko, Jr., by Anton Lewko, Sr., guardian ad litem, against the Charles Krause Milling Company. From an order sustaining general demurrer to the complaint, plaintiff appeals. Affirmed.

Action to recover damages for injuries sustained by a boy 4 1/2 years of age who fell into a steam pit located upon defendant's premises. The complaint alleged, among other things: That “the defendant is the owner of a large piece of real estate upon which stands its mill, and has considerable real estate surrounding the said mill. That outside of its mill, and on a part of its real estate which is not fenced and which is open and accessible to every one and especially to children, who are in the habit to play thereon, which heretofore maintained a large hole about 3 feet in diameter and about 5 or 6 feet deep, and that said hole was connected with the mill of the defendant by a pipe and was frequently filled with hot or boiling water, and that the said pipe carried from said mill hot steam into the said hole. That the said mill is located in a thickly populated residence district containing many children, and that the said real estate where said hole was located was known to the defendant to be constantly frequented by children who used said vacant property for the purpose of play, games, and recreation. That the said real estate and said hole heretofore described was of such a character and in such condition that it was attractive to children and was so situated that it was likely to, and known to the defendant to be likely to, and that it did, constantly attract small children to play thereon, and that children habitually played on said real estate and around and about the said hole. That the said Anton Lewko, Jr., together with a number of other small children of approximately his own age, played on said real estate and around and about the said hole, and that the said Anton Lewko, Jr., fell into the said hole and was burned and scalded by the hot water and steam therein and injured. That the defendant was negligent in failing to provide any warning, guards, or means of preventing children from using the said real estate or playing around about or in the said hole heretofore described. That the said injury to the said Anton Lewko, Jr., was caused solely and proximately by the negligence of the defendant in failing to prevent children from frequenting the said real estate and playing in and about the hole, and in failing to provide any warning, guard, fence or appliance of any kind which would reasonably protect and prevent children from playing around and about the said hole.”

The defendant entered a general demurrer to the complaint, which was sustained. From an order entered accordingly, the plaintiff appealed.

Crownhart, J., dissenting.

Richter & Nebel, of Milwaukee, for appellant.

Freeman & Bendinger, of Milwaukee (George C. Hofer, of Milwaukee, of counsel), for respondent.

VINJE, C. J. (after stating the facts as above).

[1][2][3] We are again called upon to distinguish between cases where the plaintiff is a trespasser or mere licensee, and where he is an invitee or where he has a right to be, as in a public street or highway. Here the allegations of the complaint construed most favorably to the plaintiff, as they should be, make him out at most only a licensee. He was on private property perhaps with the knowledge of the defendant and perhaps not. All the complaint alleges is that children were in the habit of playing on defendant's land to his knowledge, not that he knew plaintiff played on his land, but it can be implied from this that he permitted them to do so. But mere permission or license does not imply invitation. Muench v. Heinemann, 119 Wis. 441, 447, 96 N. W. 800. So that at most he was only a licensee on private property. The law is well settled in this state and in most of the sister states that a mere licensee on private property takes the premises as he finds them. The owner owes him no duty save to refrain from active negligence rendering the premises dangerous. Cahill v. Layton, 57 Wis. 600, 16 N. W. 1, 46 Am. Rep. 46;Muench v. Heinemann, 119 Wis. 441, 96 N. W. 800;Brinilson v. Chicago & N. W. Ry. Co., 144 Wis. 614, 129 N. W. 664, 32 L. R. A. (N. S.) 359; 20 R. C. L. 51 et seq. The same rule applies to trespassers. Zartner v. George, 156 Wis. 131, 145 N. W. 971, 52 L. R. A. (N. S.) 129;Emond v. Kimberly-Clark Co., 159 Wis. 83, 149 N. W. 760; 20 R. C. L. 57 et seq.

Where this court has held a defendant liable for a dangerous condition of premises as to licensees or trespassers, it has been in cases such as Kelly v. Southern Wisconsin Ry. Co., 152 Wis. 328, 140 N. W. 60, 44 L. R. A. (N. S.) 487, and Ptak v. Kuetemeyer (Wis.) 187 N. W. 1000, where the dangers were in public streets where children had a right to be; or in cases where the danger constituted a hidden death trap, as did the electric wires in Meyer v. Menominee & Marinette L. & T. Co., 151 Wis. 279, 138 N. W. 1008, or an obscured pitfall in a licensed pathway, as in Brinilson v. Chi. & N. W. Ry. Co., 144 Wis. 614, 129 N. W. 664, 32 L. R. A. (N. S.) 359, which was held to constitute active negligence.

Useful and not grossly negligent conditions and appliances on private property do not render the owner thereof liable to mere licensees or trespassers. To do so they must be of such a character as to constitute active negligence. The pit in question was open, obvious, and useful, and, though dangerous to children and perhaps to adults also, it cannot be classed as a hidden trap or a concealed death dealing instrumentality.

Order affirmed.

CROWNHART, J. (dissenting).

This is an appeal from the order sustaining a general demurrer to the complaint. It appears from the complaint that defendant corporation was the owner of a mill situated on a piece of unfenced land surrounding its mill. The mill was in a thickly populated residence district containing many children, and the children frequented the land surrounding the mill to play games and for recreation, to the knowledge of defendant. The place was attractive to children, as it naturally would be, and it did constantly attract small children, who habitually played on such land. The defendant maintained a hole near the mill, which was about three feet across and about six feet deep, which was connected to the mill by a pipe, through which hot water and steam were deposited in the hole, and such children played around such hole to the knowledge of the defendant. The hole was not guarded in any way, there were no warning signs put up, and no efforts made to prevent children from playing on the real estate or to keep them from falling in the pit of hot water. The plaintiff, 4 1/2 years old, who had been attracted to the place with other children, fell into the hole and was badly scalded and crippled for life.

For the purposes of our decision 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 its attractiveness for play, and while playing thereon is injured by an artificial, dangerous contrivance, which the owner maintained, knowing of its dangerous character, having knowledge that the premises were attractive to children, that children habitually came to play and did play around such dangerous contrivance, and where the owner makes no effort whatever to keep the children away from such dangerous pitfalls.

We may start with the premise that courts differ on this question. As was said by Mr. Justice Clarke, of the United States Supreme Court, Chief Justice Taft and Mr. Justice Day concurring, in a recent case:

“The courts of our country have sharply divided as to the principles of law applicable to ‘attractive nuisance’ cases, of which this one is typical.

“At the head of one group, from 1873 until the decision of today, has stood the Supreme Court of the United States, applying what has been designated as the ‘humane’ doctrine. Quite distinctly the courts of Massachusetts have stood at the head of the other group, applying what has been designated as a ‘hard doctrine’--the ‘Draconian doctrine.’ ” United Zinc & Chemical Co. v. Britt, 258 U. S. 276, 42 Sup. Ct. 300, 66 L. Ed. 615.

In the case then before the United States Supreme Court, there was no claim that children were habitually at play on the private premises or that the defendant had knowledge thereof, and the children injured were strangers to the neighborhood. The court did not overrule any former decisions on the subject of attractive nuisances. Thompson on Negligence, vol. 1, § 1026, has this to say:

“One doctrine under this head is that if a child trespasses upon the premises of the defendant, and is injured in consequence of something that befalls him while so trespassing, he cannot recover damages, unless the injury was wantonly inflicted, or was due to the recklessly careless conduct of the defendant. This cruel and wicked doctrine, unworthy of a civilized jurisprudence, puts property above humanity, leaves entirely out of view the tender years and infirmity of understanding of the child, indeed his inability to be a trespasser in sound legal theory, and visits upon him the consequences of his trespass just as though he were an adult, and exonerates the person or corporation upon whose property he is a trespasser from any measure of duty towards him which they would not owe under the same circumstances towards an adult.”

In a note he adds:

“This is said with full knowledge of the old common-law rule--still barbarously adhered to--that children, even of tender years, are civilly liable for their...