Petrak v. Cooke Contracting Co., 4

• Decision Date: 01 March 1951
• Docket Number: No. 4,4
• Citation: 329 Mich. 564,46 N.W.2d 574
• Parties: PETRAK v. COOKE CONTRACTING CO.
• Court: Michigan Supreme Court

Page 574

46 N.W.2d 574

329 Mich. 564

PETRAK v. COOKE CONTRACTING CO.

No. 4.

Supreme Court of Michigan.

March 1, 1951.

Armstrong, Essery, Helm & Marshall, Detroit (Donald W. Grant, Detroit, of counsel), for appellant.

Butzel, Eaman, Long, Gust & Kennedy, Detroit, for appellee.

Before the Entire Bench.

BUSHNELL, Justice.

Joseph Petrak, administrator of the estate of Thomas Petrak, deceased, brought suit against Cooke Contracting Company, claiming that the death of his son, Thomas, was caused by the 'wilful, malicious, intentional, wrongful, and negligent actions' of the Cooke company. For some months prior to the death of Thomas on October 29, 1946, defendant Cooke, with the permission of the owner, had been using a vacant lot in the city of Grosse Pointe for the storage of its road construction materials and equipment. These included hoppers for cement, sand and gravel, a crane, a subgrader, and a flat four-wheel trailer. There were also a number of barrels of tar and large piles of sand and gravel stored on the premises.

On the morning of the day before the fatal accident, defendant's employees placed a 24-foot steel beam weighing between 1,500 and 2,000 pounds on the trailer. One end of this beam was placed at about the center of the rear of the trailer, and the other about one and one-half feet from the front corner. At about 5:15 p. m. the following day, Thomas, then 11 years old, and a school companion, Paul Hoey, about the same age, went to the lot and played for a while in the sand. They later became interested in a barrel of tar that was stuck to the ground near the trailer. The boys attempted to tip over this barrel. Thomas braced himself against the trailer and pushed the barrel with his feet. Paul testified that Thomas did not touch the beam, but that he may have 'jiggled' the trailer. As he did so, the beam fell on him. Paul was so frightened that he ran away and said nothing about the accident until he was questioned the next day. The following morning Thomas' body was found pinned under the beam.

The lot was not inclosed, and there is testimony that it was a common occurrence for children to play on the premises. They had been warned not to do so and at various times were ejected.

The trial judge directed a verdict for the defendant. He held that 'the iron beam was not an inherently dangerous item, and that the boy had no right to be where he was when he was killed.' See in this connection Jaworski v. Detroit Edison Co., 210 Mich. 317, 178 N.W. 71. He stated that, in granting defendant's motion, he was following the rule in LeDuc v. Detroit Edison Co., 254 Mich. 86, 235 N.W. 832, 834.

In the LeDuc case the doctrine of 'attractive nuisance' is discussed at length. Mr. Justice Fead, writing for the Court, pointed out the conflicting authorities on the subject and stated: 'However, the cases affirming liability recognized the trespass rule, and the point of distinction is this:

'Where the child is where he has a right to be, as in the street or as a licensee on private premises, and his trespass is technical rather than willful, i. e., consists of playing with or taking the property of another as the spontaneous and natural act of an irresponsible child immediately attracted to the object, recovery is not barred by the trespass.'

A judgment against a highway contractor for injuries sustained by a 9-yearold boy was upheld in Butrick v. Snyder, 236 Mich. 300, 210 N.W. 311. The contractor, who had been using dynamite to break up a large stone, had left some dynamite caps in a box on a shelf of a tool shed located on private premises near a school. School boys, with permission of their teacher, had been in the habit of playing on the land where the shed was located. The decision in this case is based on the inherently dangerous nature of the instrumentality which was the cause of the accident. Powers v. Harlow, 53 Mich. 507, 19 N.W. 257, was cited as decisive. Ryan v. Towar, 128 Mich. 463, 87 N.W. 644, 55 L.R.A. 310, was not discussed, but in the LeDuc case, supra, the court pointed out that the 'attractive nuisance' doctrine has been conservatively applied. In that case it was held that a work cart containing a supply of gasoline which was left on the parkway between the sidewalk and the street did not constitute an 'attractive unisance.' It was further held that the boys in opening the faucet of the...