Tucker v. Draper

• Decision Date: 05 June 1901
• Citation: 86 N.W. 917,62 Neb. 66
• Parties: TUCKER v. DRAPER.
• Court: Nebraska Supreme Court

62 Neb. 66

86 N.W. 917

TUCKER

v.DRAPER.

Supreme Court of Nebraska.

June 5, 1901.

Syllabus by the Court.

1. One who goes upon the premises of another by express or implied invitation of the owner may recover damages for an injury caused by a failure on the part of such owner to keep the premises in a reasonably safe condition.

2. In an action by an administrator to recover damages for the death of his intestate, under chapter 21, Comp. St., the petition must show a pecuniary injury to the widow or next of kin, but as against a general demurrer it is sufficient in that regard to allege that, “by reason of the death of the intestate, and the loss of the service and society and fellowship of the said intestate, the plaintiff has been damaged in the sum of five thousand dollars.”

3. In such action, unless the facts are undisputed, and are of such a nature that ordinary minds would not differ in their judgment of them, the question of negligence must be submitted to the jury.

4. Evidence examined, and found sufficient to warrant the trial court in submitting the question of negligence to the jury.

5. In such action for the death of a child, the father, as administrator, being plaintiff, it is error to instruct the jury that contributory negligence of the father is no defense.

Error to district court, Lancaster county; Hall, Judge.

Action by Thomas S. Draper, as administrator, etc., against Nancy J. Tucker, as administratrix, etc., to recover for the death of plaintiff's intestate. From a judgment in favor of plaintiff, defendant brings error. Reversed.Field & Brown, for plaintiff in error.

Geo. A. Adams and E. J. Burkett, for defendant in error.

SEDGWICK, C.

The plaintiff sued as administrator of his son, a child 3 years and 3 months of age, who was killed by falling into a well on the premises of the defendant. There was a trial with a jury, and verdict for the plaintiff. The defendant's motion for a new trial was overruled, and judgment entered on the verdict. The case is brought here upon petition in error.

The defendant insists that the petition was insufficient, and that the general demurrer thereto ought to have been sustained by the court; and the first ground of this objection is that, as the accident occurred on the privateproperty of the defendant, and in the absence of an express or implied invitation to the deceased child to go upon the premises, there can be no recovery; and that the facts alleged in the petition fail to show such invitation. There is some repetition and some incoherency in the petition, but it contains the allegations that defendant permitted the public in general to use the lots for hitching horses and teams, and permitted their use by the patrons of the saloon and other persons desiring places to hitch horses and teams during their temporary stay in the city of Lincoln, and the lots were thrown open to the public in connection with said saloon so as to better enable the tenant to rent said saloon, and make it bring a better rental and more money to the owners; and for said reason the public was, by defendant, notified and invited to go upon said lots and use them as above stated; and said lots and premises were by defendants thrown open to the public in general, and the general public was, by defendant, invited to enter and use the same as public property. As against a general demurrer, we think there is here an allegation that the lots were thrown open to the general public, and the general public was invited to use the lots as public property; and the deceased child, being one of the general public, he was, of course, embraced in the invitation.

The second objection to the sufficiency of the petition is, that there is no sufficient allegation of pecuniary loss to the plaintiff. The allegation is that, “By reason of the death of the said Harry Draper, the plaintiff has been damaged by reason of the loss of the service and society and fellowship of the said Harry Draper in the sum of $5,000.” It is assumed that the society and fellowship of one's children have no pecuniary value. Some courts have so expressed themselves, but we do not find it necessary to discuss that proposition. In Hurst v. Railway Co., 84 Mich. 539, 48 N. W. 44, the supreme court of Michigan in a well-reasoned opinion, citing many authorities, concludes that “pecuniary injury must be alleged and proved.” There was no allegation of loss of service, nor of actual pecuniary damage. The allegation was, “By reason of which negligence of said defendant and injury to and death of said Lorenzo Hurst an action has accrued to said plaintiff, as representative of the next of kin of said Lorenzo Hurst, and in which he claims damages from said defendant in the sum of $10,000.” The court said: “It is argued, however, by counsel, that this statute declares the liability of the person or corporation whose negligence caused the death, and that, therefore, no evidence of pecuniary damages was requisite to entitle the next of kin to maintain the action, and recover such damages. The statute leaves it to the jury to give such damages as they shall deem fair and just;” and held that there must be a special allegation of pecuniary loss in the petition, which must be supported by proof. See, also, Orgall v. Railroad Co., 46 Neb. 4, 64 N. W. 450;Electric Co. v. Laughlin, 45 Neb. 391, 63 N. W. 941. In Railroad Co. v. Van Buskirk, 58 Neb. 252, 78 N. W. 514, the action was brought by the administrator of the estate of Charles P. Van Buskirk, deceased, and the petition alleged that “the said Charles P. Van Buskirk has neither wife nor children, but left Alonzo J. Van Buskirk and Mary P. Van Buskirk, his parents, and Gertrude G. Eledge, Lewis G. Van Buskirk, * * * brothers and sisters, who are heirs at law and next of kin, who have been damaged in the sum of $5,000.” This petition was precisely within the rule announced in Hurst v. Railway Co., 84 Mich. 539, 48 N. W. 44, and other cases, and was clearly insufficient, and was so held. In the opinion it is said that it is necessary to aver a loss of means of support where, from the relation of the survivors, the law would not presume that from his death such survivors had been deprived of their means of support; but it was not intended to declare the rule that the action cannot be maintained unless it in some way appears that the survivors of the deceased have lost their means of support. Loss of means of support is pecuniary injury, but it by no means follows that it is the only pecuniary injury for which a recovery may be had in such actions. City of Friend v. Burleigh, 53 Neb. 674, 74 N. W. 50. The services might be valuable to a parent entitled thereto, who was in such financial condition as not to be dependent upon such services.

The defendant insists that there was not sufficient evidence to warrant the submission of the issues to the jury. The case of Richards v. Connell, 45 Neb. 467, 63 N. W. 915, is cited as decisive of this question. In that case the court said: “The owner of a vacant lot upon which is situated a pond of water or dangerous excavation is not required to fence it, or otherwise insure the safety of strangers, old or young, who may resort to said premises not by invitation, express or implied, but for the purpose of amusement, or from motives of curiosity.” A boy of about 10 years of age, who was accustomed to play in and about a pond of water in a vacant lot, the property of defendant, fell from a section of sidewalk which he was using as a raft on the pond, and was drowned. The defendant had permitted the surface water to accumulate on this lot. He had nothing to do with causing it to accumulate there. The pond was formed in the course of nature. The boy formed a raft, and “went on said pond, floating thereon.” He was capable of constructing and did construct the “raft” that caused his death. Negligence, and even recklessness, was properly chargeable against him, and it was held that the defendant was not liable. We have no doubt that under the facts in that case the law was correctly applied.The case of City of Omaha v. Bowman, 52 Neb. 293, 72 N. W. 316, is similar in character. “A body of water--either standing, as in ponds and lakes, or running, as in rivers and creeks, or ebbing and flowing, as on the shores of seas and bays--is a natural object, incident to all countries which are not deserts. Such a body of water may be found in or close to nearly every city or town in the land. The danger of drowning in it is an apparent, open danger, the knowledge of which is common to all; and there is no just view, consistent with recognized rights of property owners, which would compel one owning land upon which such water, or part of it, stands or flows, to fill it up, or surround it with an impenetrable wall.” Peters v. Bowman (Cal.) 47 Pac. 113, 114;City of Omaha v. Bowman, 52 Neb. 293, 72 N. W. 316. There is no hard and fast rule applicable to every one under like circumstances. To an adult in full possession of his mental and physical powers, one standard may be applied; to a boy, particularly if he be of limited intelligence, another standard; and to an infant not sui juris, and totally ignorant of danger, still another. Railroad Co. v. Cumberland, 20 Sup. Ct. 380, 382, 44 L. Ed. 447;Huff v. Ames, 16 Neb. 139, 19 N. W. 623, 49 Am. Rep. 719. “Much may depend upon the character of the injury, the circumstances under which it occurred, and the size, intelligence, and maturity of the child. In such cases the jury must be allowed to pass upon the question of contributory negligence. It is error to rule it as a question of law.” Gillespie v. McGowan, 100 Pa. 144, 45 Am. Rep. 365, 368. It is only where the facts are undisputed, and are of such a nature that ordinary minds would not differ in their judgment of them, that the question is one of law for the court. In Richards v. Connell, supra, it is said “that plaintiff can recover in case where the...