Middaugh v. Waseca Canning Co.
| Decision Date | 28 October 1938 |
| Docket Number | 31,719 |
| Citation | 281 N.W. 818,203 Minn. 456 |
| Parties | MARY MIDDAUGH v. WASECA CANNING COMPANY AND ANOTHER; FAIRMONT CANNING COMPANY, APPELLANT |
| Court | Minnesota Supreme Court |
Action in the district court for Waseca county by the special administratrix of the estate of June Middaugh to recover for her death, alleged to have been caused by the negligence of defendants. The case was tried before Fred W. Senn, Judge and a jury. At the close of the evidence the action was dismissed as to the Waseca Conning Company. Plaintiff had a verdict of $1,616, and defendant Fairmont Canning Company appealed from the judgment. Affirmed.
Automobile -- coupled wagons drawn by tractor -- injury to child -- question for jury.
Plaintiff's decedent, ten years and two months old, ran in between two loaded wagons coupled together, drawn by a tractor along a residential street in Waseca, to ride on the tongue of the rear wagon attached to the rear axle of the one in front. She fell from the tongue, her clothing caught in the gear of the wagon and dragged her so that the rear wheel of the second wagon crushed her head, causing instant death. It is held:
1. The jury could find that it was negligent to haul loads of the character here disclosed along a street frequented by children, who, to defendant's knowledge, were attracted by the chance the exposed part of the tongue of the rear wagon offered for a ride.
Automobile -- coupled wagons drawn by tractor -- injury to child -- contributory negligence.
2. The contributory negligence of the girl does not appear as a matter of law.
Freeman & King, for appellant.
Moonan & Moonan and Gallagher & Madden, for respondent.
After verdict, defendant, on a settled case, moved for judgment notwithstanding. The motion was denied, and defendant appeals from the judgment rendered in plaintiff's favor for $1,668.89.
The only assignments of error are: (a) The court erred in denying defendant's motion for a directed verdict; (b) the court erred in denying defendant's motion for judgment notwithstanding the verdict. The only question raised is whether the record justifies a recovery, and that depends upon the sufficiency of the proof of defendant's negligence as the cause of the death of plaintiff's decedent, and the latter's freedom from contributory negligence as a matter of law.
The action was brought to recover for the death of June Middaugh a girl ten years and two months old, through the alleged wrongful and negligent acts of defendant. The record discloses that defendant has for several years operated a sweet corn canning factory at Waseca, this state. It was so engaged on August 22, 1937, the day of June's death. The Middaughs lived at 510 Fifth street, some hundred feet south of the canning factory. The loads of sweet corn pass northerly along Fifth street. During the canning operations this street is much congested by these loads, which have to move slowly and often have to stop and start. To the knowledge of defendant's servants and agents in charge of transporting the sweet corn from the fields to the factory, children are attracted to these loads to pick off sweet corn and to steal rides as the loads pass north on this street. The rig here involved consisted of two wagons coupled together and drawn by a farm tractor. On each wagon was a rack 14 feet long by 7 feet wide, which when loaded was from 5 to 6 feet above the ground. The poles or tongues of these wagons were about 11 feet long. The tongue on the first wagon was attached to the drawbar of the tractor directly back of its rear wheels. The tongue of the second wagon was attached to the rear axle of the front wagon with a chain, so that from 4 to 5 feet of the tongue was exposed between the two loads, affording a chance for the children to secure a ride. The Middaugh home was located on the west side of Fifth street. On the day of the fatal accident the parents of June were working at the canning factory. She, a 12-year old brother, and a 2 1/2-year old sister were left at home. It appears that June helped with the household duties and had prepared the evening meal. She was seen with a girl about her age and a boy five to six years old, at about six p.m., standing in the street in front of her home as defendant's rig just described was passing by. When the first wagon got by the three children darted in between the two wagons and June mounted the exposed part of the tongue of the second wagon for a ride. She fell off the tongue, her clothing caught in the gear of the wagon, and she was so dragged that her head came under the left rear wheel and was crushed, causing instant death.
The jury could find that, under the conditions existing on this street in the vicinity of this accident and at the time thereof, the coupling of two loaded wagons together drawn by a tractor created an alluring peril to children which the ordinarily careful person would anticipate. Under our decisions, even trespassing children are entitled to protection against hazards created by one having knowledge of their presence and peril. Hepfel v. St. P.M. & M. Ry Co. 49 Minn. 263, 51 N.W. 1049; Erickson v. M. St. P & S.S.M. Ry. Co. 165 Minn. 106, 205 N.W. 889, 45 A.L.R. 973, the last part of the opinion beginning with the middle of page 113. Our decisions are not in accord with some of the other states, notably with those from New Jersey, of which may be cited Friedman v. Snare & Triest Co. 71 N.J.L. 605, 61 A. 401, 70 L.R.A. 147, 108 A.S.R. 764, 2 Ann. Cas. 497. We consider the reasoning in Gimmestad v. Rose Brothers Co. Inc. 194 Minn. 531, 261 N.W. 194, entirely at variance with that of the New Jersey court just cited, is decisive here. The instant case is to be distinguished from those wherein the peril of the trespassing child was unknown to the one charged with the negligence which caused the injury. Such was the situation in Allred v. Pioneer Truck Co. 179 Cal. 315, 176 P. 455; Michalik v. City of Chicago, 286 Ill.App. 617, 4 N.E.2d 256; Zigman v. Beebe & Runyan Furniture Co. 97 Neb. 689, 151 N.W. 166, L.R.A. 1915D, 536, and other cases cited by defendant, where the presence of trespassing children could not reasonably have been...
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