Nechodomu v. Lindstrom
| Decision Date | 22 June 1956 |
| Citation | 273 Wis. 313,77 N.W.2d 707,62 A.L.R.2d 884 |
| Parties | , 62 A.L.R.2d 884 Joseph NECHODOMU, Jr., a minor, by John R. Cashman, his guardian ad litem, et al., Respondents, v. Wilbert LINDSTROM, Jr., et al., Appellants. |
| Court | Wisconsin Supreme Court |
Ben E. Salinsky, Gruhle & Fessler, Sheboygan, for appellants Lindstrom and Abts.
Dudley O. Emmert, Manitowoc, for appellants Lambert and Zinda.
Frank A. Murphy, Manitowoc, Murphy & Brady, Manitowoc, of counsel, for respondents.
On May 22, 1952 defendants Lambert and Zinda were the owners of property located just south of the city of Manitowoc where they operated a farm implement business. The property is large and includes a building consisting of a store downstairs and living quarters upstairs where the said defendants and their families lived. They maintained a play area near the building, with sand boxes and swings, for the use of their children and neighboring children.
Lambert and Zinda had contracted with Robert Abts to apply imitation stone called Dura-stone to the exterior of the building. On the morning of May 22nd Abts brought a machine referred to as a 'mud mixer' to the premises, in which machine the Durastone was mixed for application to the building. The machine was located about twenty feet from the northeast wall of the building and in close proximity to it were placed a sandpile and a sifting screen, bags of cement, and a water barrel which was filled by means of a hose attached to the building. Water for the mixture was taken from the barrel with a pail.
The machine was run by a gasoline engine. Its construction was that of a stationary drum with revolving blades or fins, which defendants' expert witness, Elroy Becker, described as more dangerous than a cement mixer because 'the fins are close to the drum all the time.' The top of the drum was 44 to 48 inches above the ground and was open except for five iron rods placed horizontally across and somewhat above the opening, spaced widely enough to admit a man's arm.
When operation of the machine was begun on the morning of May 22nd the neighboring children gathered about, including Joseph Nechodomu, Jr., then aged nine years. Lindstrom, who was mixing the material, testified that the children played with the sand, shoveling and sifting it, and Joey held the hose while the barrel was being filled with water. He particularly remembered Joey 'because he wanted to do everything;' and he told the children that they should not come near the machine when it was running or somebody might be hurt; that they should go away. While he and other employees were eating lunch at noon they noticed Joey and another child playing with the water hose and told them to go away.
It was Lindstrom's job to mix the material and haul it to the building where other men applied it. About the middle of the afternoon, after mixing a load of the material, he took a wheelbarrow load around to the other side of the building where the men were working. The machine was left running and while it was thus left unattended Rickey Zinda reached into the drum with a can to take out some of the material. He dropped the can and Joey put in his right hand to retrieve it, receiving the injuries for which damages are sought. None of Abts' employees could observe the machine from the position where they were working on the building.
The first seven questions of the special verdict dealt with the negligence of the parties with respect to the cause of action based on attractive nuisance; the first three as to Lindstrom and Abts; the second three as to Lambert and Zinda; the seventh as to the minor.
Question 1 inquired:
Defendants contend that the doctrine of attractive nuisance does not apply. In our opinion, the evidence presented a question of fact for the jury whether, under all the circumstances existing, the machine was inherently dangerous to children and constituted an attractive nuisance.
In Best v. District of Columbia, 1934, 291 U.S. 411, 419, 54 S.Ct. 487, 490, 78 L.Ed. 882, where a child drowned after falling through a hole in a wharf maintained by the defendant, the court stated:
In Gimmestad v. Rose Bros. Co., 1935, 194 Minn. 531, 261 N.W. 194, 196, where a boy was injured while playing with other children on a pile of lumber on an unfenced private lot, the Minnesota court, following the Best case, stated:
In contending that the mud mixer was not an inherently dangerous instrumentality, defendants cite Coffey v. Oscar Mayer & Co., 1948, 252 Wis. 473, 32 N.W.2d 235, 3 A.L.R.2d 753, where a child fell off an ice truck when the driver set the vehicle in motion. In considering whether such a truck was an inherently dangerous instrumentality, this court held that it was not. In considering whether the driver exercised ordinary care under all the circumstances, the court followed Giessel v. Columbia County, 1947, 250 Wis. 260, 26 N.W.2d 650. In both cases the drivers had told the children to get off and stay away from the truck, which they did, and later the injured child mounted the truck where he could not be seen by the driver and was hurt when the truck was set in motion.
Trucks and automobiles have been held by this court not to be attractive nuisances, that the doctrine "is limited to things which are dangerous to children because of the likelihood that children will meddle with them, and does not extend to things which become dangerous only when adults set them in motion." Drivers are required only to exercise reasonable care in moving the vehicle. Coffey v. Oscar Mayer & Co., supra, 252 Wis. at page 478, et seq., 32 N.W.2d at page 237.
A truck or automobile would be comparable to the machine here in question only if it were, for instance, left running with the hood up, unattended and under such circumstances as would permit children who were attracted to them to reach into the moving engine parts.
It cannot be said as a matter of law that the mud mixer, under all the attendant circumstances, was not a machine inherently dangerous to children. That question was for the jury and its finding that it was is amply supported by the evidence. The expert Becker testified it was a dangerous machine because the revolving blades were very close to the wall of the drum. The rods at the top were neither deterrent nor protection to children who might reach into the drum, and the height of the opening from the ground made it easily accessible to children of the age and size of those who were playing on the premises. The machine was in motion and unattended, although it was equipped with a clutch which would disengage the moving parts from the motor. That its operation and all the accessories to its operation--sandpile, hose and water--were attractive to the children was shown by the evidence that they gathered around watching the machine and playing with the sand, the shovels and the hose.
'Sandpiles close at hand would constitute 'a bait' they (children) would inevitably follow.' Best v. District of Columbia, supra, 291 U.S. at page 419, 54 S.Ct. at page 491.
Lindstrom testified that several times during the morning he saw the children playing around the machine, that 'they were passing back and forth there by the sand and the water.' He further testified that once, upon returning to the machine, he saw Joey and another boy in the field across the street and they looked like they were hiding from him. On cross-examination he said there was water on the ground near the machine and he wondered about it, admitting that he must have thought the children might have been near the machine while he was absent from it.
Here again the facts are different from the Coffey and Giessel cases. In those cases the children gathered around the trucks were told to stay away and they did stay away. The drivers, having no reason to believe they had returned and being unable to see the injured child from their position as they started up the trucks, were held not negligent. Here, however, where Lindstrom had reason to believe the children were playing around the machine in his absence, it was for the jury to determine whether the operation of the machine in the manner it was operated constituted a breach of the duty which was commensurate with the circumstances.
Defendants argue that the trial court erred in submitting the form of Question 1 in the affirmative. After reading the question to the jury the court instructed as follows:
'Now, the question is were these two defendants negligent in maintaining or allowing to exist upon the premises a machine inherently dangerous to children upon the premises, and the machine we are talking about is this particular mud mixing machine...
To continue reading
Request your trial
-
Christians v. Homestake Enterprises, Ltd.
... ... Pawinski, 32 Wis.2d 211, 215, 145 N.W.2d 186 (1966); it is "but a phase of the law of negligence," Nechodomu v. Lindstrom, 273 Wis. 313, 327c, 77 N.W.2d 707, 78 N.W.2d 417 (1956) ... Dean Prosser also views the doctrine of attractive ... ...
-
Hofflander v. St. Catherine's Hospital, Inc.
...obviates a young child's status as trespasser, courts nonetheless recognize that they may have this status. See Nechodomu v. Lindstrom, 273 Wis. 313, 327, 77 N.W.2d 707 (1956). The only valid concern when determining a plaintiff's status as a trespasser is whether, at the time of injury, th......
-
Schilz v. Walter Kassuba, Inc.
...applied in Angelier v. Red Star Yeast & Products Co., 5 decided in Wisconsin in 1934. Parapharasing the Angelier Case, the court in Nechodomu v. Lindstrom 6 set forth the elements of the cause of action as '(1) '* * * that the former maintained, or allowed to exist, upon his land, an artifi......
-
Mathis v. Massachusetts Elec. Co.
...Or. 245, 252-255, 355 P.2d 1104 (1960); Schneider v. Seattle, 24 Wash.App. 251, 256-257, 600 P.2d 666 (1979); Nechodomu v. Lindstrom, 273 Wis. 313, 327a-327c, 77 N.W.2d 707 (1956). See also Courtell v. McEachen, 51 Cal.2d 448, 454-455, 334 P.2d 870 (1959); Greene v. DiFazio, 148 Conn. 419, ......