Kayser v. Lindell

Injury to Child — Fall from Retaining "Wall — Landlord not Liable. Defendant owned two houses on the same lot. Both of the houses fronted on the street on which the lot abutted. He occupied one of the houses, and his tenants occupied the other. Between the two houses was an open space, on which the children of his tenants played. In the rear of this space was a retaining wall 7% feet high. The child of plaintiff, one of these tenants, climbed upon this wall while playing, fell off and was injured. In an action to recover damages for the injury, held, defendant is not liable.

Action in the district court for Goodhue county to recover $20,000 damages for. personal injuries to plaintiff’s minor son, Raymond Kayser. The cause was tried before Williston, J., and a jury, which returned a verdict of $250 in favor of plaintiff. From an order denying defendant’s motion for a new trial, Crosby, J., he appealed. It is admitted that appellant leased the floor of the tenement house to respondent; but it is nowhere claimed by either party to this action that the premises upon which this retaining wall is situated were leased to respondent, nor, as to them, that the relation of landlord and tenant existed. Appellant owed respondent no active or affirmative diligence in regard to the premises in question. Hargreaves v. Deacon, 25 Mich. 1; Charlebois v. Gogebic, 91 Mich. 59; Larmorev. Crown, 101N. Y. 391; Sterger v. Yan Sieklen, 132 N. Y. 499; Cusick v. Adams, 115 N. Y. 55; Nicholson v. Erie, 41 N. Y. 525; Sweeny v. Old Colony, 10 Allen, 368; Zoebisch v. Tarbell, 10 Allen, 385; Morrissey v. Eastern, 126 Mass. 377; Gillespie v. McGowan, 100 Pa. St. 144; Klix v. Nieman, 68 Wis. 271; Severy v. Nickerson, 120 Mass. 306; Grindley v. McKechnie, 163 Mass. 494; Trask v. Shotwell, 41 Minn. 66; Johnson v. Ramberg, 49 Minn. 341; Ratte v. Dawson, 50 Minn. 450; Akers v. Chicago, St. P., M. & O. Ry. Co., 58 Minn. 540; 2 Thompson, Neg. 1079; 42 Cent. Law J. 457, 458. The boy was not on the premises by the implied invitation of appellant. The premises in question were used by appellant as his own home. He kept no school, church, office or place of business or amusement there; nothing by which strangers could be expected to come there for his benefit; nothing that he held out to the public, the respondent or his boy as an inducement to come there; nothing that the public, the respondent or his boy could legally assume he intended for their use. All that can fairly be claimed for the evidence is that appellant suffered children to play in his yard, and that he did not drive them away. This is not an invitation. Galligan v. Metacomet, 143 Mass. 527; Morrissey v. Eastern, supra; Sweeny v. Old Colony, supra; Akers v. Chicago, St. P., M. & O. Ry. Co., supra. The owner of private premises should use reasonable care not to permit unguarded upon his premises structures or other dangerous conditions to which children would be likely to be attracted, in proximity to places frequented by them, and from an interference with which injury would be likely to result. The many so-called “turntable cases” in this court illustrate the rule. The owner of premises who, expressly or by implication, invites others to come on his premises, should be reasonably sure that he is not inviting them into danger, and to that end he must exercise ordinary care and prudence to render the premises reasonably safe. Cooley, Torts (2d Ed.) 718; Buswell, Per. Inj. § 66; Whittaker’s Smith, Neg. 60; 2 Thompson, Neg. 1079; 2 Jaggard, Torts, 893; Indermaur v. Dames, 1 Thompson, Neg. 283; Sweeny v. Old Colony, 10 Allen, 373; Elliott v. Pray, 10 Allen, 378; Carleton v. Franconia, 99 Mass. 216; Gilbert v. Nagle, 118 Mass. 278; Bennett v. Railroad Co., 102 XT. S. 577; Emery v. Minneapolis Industrial Exposition, 56 Minn. 460.. That such a structure as this retaining wall on the edge of a short playground was dangerous, there can be no doubt. That it would attract children about it seems also to admit of no doubt, for the inquisitive bump on a child is an enigma to the old.