Simkins v. Dowis

• Decision Date: 26 April 1937
• Docket Number: 13933.
• Parties: SIMKINS v. DOWIS.
• Court: Colorado Supreme Court

67 P.2d 627

100 Colo. 355

SIMKINS v. DOWIS.

No. 13933.

Supreme Court of Colorado

April 26, 1937

In Department.

Error to District Court, Logan County; Arlington Taylor, Judge.

Action by Donald Simkins, a minor, by his mother and next friend Elizabeth Simkins, against R. T. Dowis. Judgment for defendant, and plaintiff brings error.

Reversed.

T. E. Munson and Frank P. Lynch, Jr., both of Sterling, for plaintiff in error.

Sauter & Sandhouse, of Sterling, for defendant in error.

KNOUS Justice.

This action was instituted by Donald Simkins, a minor, by his mother and next friend, Elizabeth Simkins, against R. T Dowis for recovery of damages for injuries sustained by the plaintiff while playing with other children on defendant's merry-go-round in the city of Sterling, Colo. The plaintiff alleges that the defendant negligently permitted the merry-go-round, at the time only partially installed, to remain unguarded and unprotected, although the defendant knew that the machinery was in a dangerous condition and liable to cause damage and injury to children who naturally would be attracted thereto; that the installation of a merry-go-round constituted the maintenance of an attractive nuisance; that numerous children had, in fact, gathered on the premises where the machinery was being installed; and that plaintiff, then eight years of age climbed upon the merry-go-round and, when it was revolved by other children, had his foot caught in the rotating cog wheels whereby he was seriously injured.

The plaintiff's evidence shows that the defendant, who had been in the amusement business, operating merry-go-rounds, Ferris wheels, and other amusement devices for a considerable period of time, on May 4, 1934, began the installation of a carnival in Sterling, consisting of a number of machines for the entertainment of children and others. During this day he began the erection of the merry-go-round involved, but its installation had not been completed, when shortly Before 6 o'clock in the afternoon the defendant and his employees, who were engaged in the erection of the merry-go-round, ceased work and left it wholly unprotected, unfastened, and unguarded. The upright brace constituting the bearing or perpendicular axle upon which the merry-go-round rotated had been installed, and the upper part of the revolving structure from which later the horses, compartments, and lower platforms of the merry-go-round would be suspended, was in place, as was the cogwheel mechanism which causes the wooden horses on the merry-go-round to rise and fall as the merry-go-round turns. Soon after the departure of the defendant and his men from the scene, a considerable number of children congregated around the machinery. Several children, among whom was the plaintiff, climbed up to the superstructure of the machine and located themselves at various points thereon; the plaintiff being in proximity to the cogwheel mechanism mentioned. At this point two boys, about fourteen years of age, threw a rope over one of the projecting arms of the superstructure and began to revolve the merry-go-round, thereby causing the cogwheels mentioned to turn. Plaintiff's foot, by some means, became entangled in these revolving cogwheels and his foot and ankle were so badly crushed and mangled that it became necessary to amputate his leg between the knee and ankle.

At the conclusion of the plaintiff's case, upon motion of the defendant, the court directed a verdict in favor of the defendant on the grounds that there was no proof of any negligence on the part of the defendant; that there was an intervening cause of the accident, to wit, the boys with the rope; that there was no proof that the defendant by the mere construction of the merry-go-round was under any obligation to protect the plaintiff from injury therefrom; and that there was no proof that the defendant knew or had reasons to know that the merry-go-round he had left unprotected was in a dangerous condition and, therefore, it was to be assumed that the defendant had exercised reasonable care.

It is our conclusion that the court erred in granting the motion for a directed verdict.

The pleading and evidence of the plaintiff bring this case clearly within the principle of the attractive nuisance doctrine or 'turntable' cases. The turntable doctrine has been considered and approved by this court in several cases, among which are Kopplekom v. Colorado Cement Pipe Co., 16 Colo.App. 274, 64 P. 1047, 54 L.R.A. 284; Public Service Co. v. Petty, 75 Colo. 454, 226 P. 297; Denver City Tramway Co. v. Nicholas, 35 Colo. 462, 84 P. 813. The basic principle which was first announced, so far as modern law is concerned, in the case of Lynch v. Nurdin, 1 Q.B. 29, an English case, has been adopted by the United States courts and by the courts of last resort in a majority of the states of the Union. The rule is clearly set out in Kopplekom v. Colorado Cement Pipe Co., supra, 16 Colo.App. 274, at page 278, 64 P. 1047, 1048, 54 L.R.A. 284, where the court said: 'If an owner sees fit to keep on his premises something that is an attraction and allurement to the natural instincts of childhood, the law, it is well settled, imposes upon him the corresponding duty to take reasonable precautions to prevent the intrusion of children, or to protect from personal injury such as may be attracted thereby.'

The leading case on the subject in the United States is probably that of Sioux City & P. R. Co. v. Stout, 17 Wall. 657, 21 L.Ed. 745, decided by the Supreme Court of the United States, and which has been cited with approval in most, if not all, of the Colorado cases mentioned and is specifically followed in the Kopplekom Case, supra. In the opinion in the latter case a portion of the charge to the jury of the distinguished Judge Dillon (Stout v. Sioux City & P. R. Co., 23 Fed.Cas. No. 13,504, p. 183, 2 Dill. 294), when the case was tried in the circuit court is quoted. We believe a clearer comprehension of the principle may be given by reference to additional parts of Judge Dillon's charge (23 Fed.Cas. pp. 184, 185), which, including the portion quoted in the Kopplekom Case, supra, reads as follows:

'Now the ground of complaint against the defendant, as set out in the petition, is that the turntable, as it was constructed, was of a dangerous nature and character, when unlocked or unguarded, and that being, as it is alleged, in a place much resorted to by the public, and where children were wont to go and play, ti was the duty of the defendant to keep the same securely locked or fastened, so as to prevent it from were wont to go and play, it was the duty or to keep the same guarded, so as to prevent injuries such as befell the plaintiff.

'The basis of this action, therefore, is that the defendant owed the plaintiff a duty of this kind; that, in failing to discharge this duty, the defendant was guilty of negligence. * * *

'The machine in question is part of the defendant's road, and was lawfully constructed where it was. If the railroad company did not know, and had no good reason to suppose, that children would resort to the turntable to play, or did not know, or had no good reason to suppose, that if they resorted there, they would be likely to get injured thereby, then you cannot find a verdict against them.

'But if the defendant did know, or had good reason to believe, under the circumstances of the case, the children of the place would resort to the turntable to play, and that if they did they would or might be injured, then, if they took no means to keep the children away, and no means to prevent accidents, they would be guilty of negligence, and would be answerable for damages caused to children by such negligence.'

This instruction to the jury...