Opinion
February 2, 1953 —
March 3, 1953.
APPEAL from a judgment of the circuit court for Ashland county: LEWIS J. CHARLES, Circuit Judge. Affirmed.
For the appellant there was a brief by James M. Ruth and Robert N. Ledin, both of Ashland, and oral argument by Mr. Ledin.
For the respondent there was a brief by G. Arthur Johnson, attorney, and Warren B. Foster of counsel, both of Ashland, and oral argument by Lawrence E. Hart of Madison.
By this action the plaintiff Walter Gear, as special administrator of the estate of Donald Gear, deceased, seeks to recover damages for the death of said Donald Gear from the defendant as the carrier of liability insurance upon the automobile of one Rachel Olson. At the close of plaintiff's case the defendant moved that plaintiff be nonsuited, and his complaint dismissed. The motion was granted and on January 23, 1952, a judgment was entered dismissing the complaint. The plaintiff appealed.
On May 6, 1951, Rachel Olson resided in an apartment building located on the south side of Third street east, in Ashland, Wisconsin. There is a three-car garage upon the property with a concrete apron across the front leading to a driveway to the street. On said date Rachel Olson owned a 1949 Plymouth business coupe, which she kept in one of the stalls in the garage. During that afternoon, a Sunday, Miss Olson decided to wash her car. The task was started within the garage but, because the car was too close to one of the walls, it was backed out upon the driveway. The car was left standing facing toward the south with the rear of the car toward the north. The driveway sloped somewhat to the north. Miss Olson left the car standing in reverse gear and with the key in the ignition as she completed washing and cleaning the car. On her car the ignition switch is connected with the starter motor so that turning the ignition key starts the motor. This switch is located between the steering post and the left door of the car.
On said date Donald Gear, four years and one month of age, resided with his family a short distance from the Olson residence, and on the same street. He land his two sisters and other children were accustomed to playing upon this driveway. As Miss Olson was working on the west side of the car Donald Gear, his sister, and another girl approached. Donald Gear asked permission to get into the car but permission was refused. Shortly thereafter Miss Olson moved to the east side of the car. She opened the left door and was leaning into the car washing the seat cover on the rear seat when she observed Donald Gear's hand reach in and turn the ignition key. There is no evidence that she was aware of his presence on the east side of the car until she saw his hand. She attempted to turn off the ignition key and to stop the car otherwise, but she was unable to do so. The hinges of the car door were located to the front and the door opened toward the front of the car. The car proceeded but a short distance when the door struck a tree and the car stopped. Donald Gear was thrown under the car and so severely injured that he died a short time later at a hospital.
Miss Olson testified that it was her custom to set the hand brake when she stopped the car but could not remember whether she had done so upon this occasion. A garage owner, who was also a mechanic, testified as an expert witness that the brakes upon this type of car worked on the drive shaft and that when fully set the motor would not start. Miss Olson testified that the car would start with the brakes set, although it took additional power to move it. Miss Olson and others followed Donald to the hospital and when she returned someone had moved the car. That person was not a witness and his or her testimony is not available as to the situation of the brakes at the time of the accident.
The plaintiff complains particularly about two statements made by the trial court in passing upon the motion. They are as follows:
"Well, in this matter here, first of all, it seems that the automobile was parked upon private property. It wasn't parked on the street or on the sidewalk; that the children there technically were trespassers; that in order to charge Rachel Olson with any heavier duties than one ordinarily owes to trespassers, you must go into the doctrine of attractive nuisances."
"I think that under the rules I cannot hold that this automobile situated as it was, parked where it was, was an attractive nuisance to charge any duty to Rachel Olson. I can't see where there is any act on the part of Rachel Olson, or any omission to so act, which could be charged to be culpable negligence on her part."
Plaintiff contends that this case is governed by the case of Angelier v. Red Star Yeast Products Co. 215 Wis. 47, 254 N.W. 351, wherein this court held (p. 53):
"Whether the technical legal status of a young child who enters upon the premises of another for purposes of play is a trespasser, a licensee, or an invitee by implication is, in our opinion, quite immaterial in a case like this where the circumstances and conditions shown or alleged bring the case within the rule hereinafter stated.
"It is our opinion that a possessor of real estate should be subjected to liability to a young child who is injured upon his premises if it be found that the former maintained, or allowed to exist, upon his land, an artificial condition which was inherently dangerous to children being upon his premises; that he knew or should have known that children trespassed or were likely to trespass upon his premises; 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; 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; and 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."
We agree with what was said in the Angelier Case. However, it has been determined in several cases before this court that an automobile is not an inherently dangerous instrumentality nor an attractive nuisance. Coffey v. Oscar Mayer Co. 252 Wis. 473, 32 N.W.2d 235, and cases there cited.
In determining the status of the children present we do not need to be technical nor to engage in hairsplitting definitions. We do not think the trial court had any particular distinction in mind. Regardless of the exact status of the children, the duty that Miss Olson owed was that of ordinary care. The plaintiff contends that Miss Olson did not exercise ordinary care, and was therefore negligent in that she left the key in the ignition switch, the automobile in reverse gear, with the hand brake unset or defective. The cases cited by the plaintiff in support of his position involve negligent acts in the operation of a car or leaving an automobile unattended. Whether the hand brake was set or not, the car was stopped and was motionless upon the driveway. Although the door on the east side of the car was open, the body of Miss Olson blocked the entrance so that no child could enter the car without her knowledge. The accident occurred because Donald Gear, unbeknown to her, reached the ignition key with his hand and did the only thing possible to start the car in motion. Negligence or want of ordinary care includes a reasonable anticipation of harm to another. Certainly Miss Olson could not have foreseen that Donald Gear, after he was refused permission to enter the car, would come from the west side of the car to the east side and, in her presence, although her back was turned, reach in and turn the ignition key. There is nothing in the record to indicate that she could have or should have anticipated that act on the part of a child. Under the record before us, there was no negligence on the part of Rachel Olson upon which liability can be predicated. The trial court reviewed the evidence carefully and was correct in its determination.
By the Court. — Judgment affirmed.