Nechodomu v. Lindstrom

• Decision Date: 05 April 1955
• Citation: 269 Wis. 455,69 N.W.2d 608
• Parties: Joseph NECHODOMU, Jr., a minor, by guardian et al., Respondents, v. Wilbert LINDSTROM, Jr., et al., Defendants, Gerald Lambert et al., d/b/a Lambert & Zinda Implement Co., Appellants.
• Court: Wisconsin Supreme Court

Page 608

69 N.W.2d 608

269 Wis. 455

Joseph NECHODOMU, Jr., a minor, by guardian et al., Respondents, v. Wilbert LINDSTROM, Jr., et al., Defendants, Gerald Lambert et al., d/b/a Lambert & Zinda Implement Co., Appellants.

Supreme Court of Wisconsin.

April 5, 1955.

Dudley O. Emmert, Manitowoc, for appellants.

Frank A. Murphy, Manitowoc, Murphy & Brady, Manitowoc, of counsel, for respondents.

MARTIN, Justice.

Plaintiffs attempt to recover on the theory of attractive nuisance. The injured minor was nine years old at the time of the accident.

Angelier v. Red Star Yeast & Products Co., 1934, 215 Wis. 47, 53, 254 N.W. 351, 353, enunciated the rule which applies five tests to the allegations of a complaint in these cases. It held that such a complaint as against the owner of the premises must allege:

(1) '* * * that the former maintained on, or allowed to exist upon his land, an artificial condition which was inherently dangerous to children being upon his premises * * *.' The complaint here states that the mixer machine was an artificial condition inherently dangerous to children and that defendants allowed the same to exist upon their premises. It alleges that the top of the drum on the mixer was open and exposed revolving blades therein, a condition particularly dangerous to children.

(2) '* * * that he knew or should have known that children trespassed or were likely to trespass upon his premises * * *.' This complaint states that on many occasions prior to the accident neighborhood children of tender years, including the minor plaintiff and the children of the defendants, played in and about the premises and were known, allowed and encouraged by defendants to do so; that on the day of the accident the minor plaintiff was 'a frequenter of and an invitee to said premises * * *.'

(3) '* * * that he realized or should have realized that the structure erected or the artificial condition maintained by him was inherently dangerous to children and involved an unreasonable risk of serious bodily injury or death to them * * *.' It is alleged in the complaint that Lambert and Zinda saw the operation of the mixer and knew or should have known that its operation was alluring to young children and created an artificial condition inherently dangerous to children.

(4) '* * * that the injured child, because of his youth or tender age, did not discover the condition or realize the risk involved in going within the area, or in playing in close proximity to the inherently dangerous condition * * *.' The complaint states that the minor plaintiff because of his tender years did not realize the risk involved in playing about the mixer.

(5) '* * * that safeguards could reasonably have been provided which would have obviated the inherent danger without materially interfering with the purpose for which the artificial condition was maintained.' It is alleged that defendants could have provided safeguards to eliminate the danger to children without interfering with the use of the mixer.

The complaint meets all the tests under the rule.

Appellants urge that this court should hold, as a matter of law, that the mixer machine was not a dangerous instrumentality or attractive nuisance. This we cannot do. The complaint states that it was dangerous in that the open top of the drum left revolving blades exposed. Appellants attempt to characterize the machine as a lawfully attractive object and cite James v. Wisconsin Power & Light Co., 1954, 266 Wis. 290, 299, 63 N.W.2d 116, 119,...