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in its entirety we do not believe) would not is not legally bound to safeguard against apply to the facts of this case, for the rea- occurrences that cannot be reasonably exson, as already stated, that respondent did pected or contemplated as likely to occur. not "rightfully go for business or pleasure" Decker v. Stimson Mill Co., 31 Wash, 522, up or down this pier. People who have oc- 72 Pac. 98; Johnston v. Great Northern Ry. casion to use wires highly charged with Co. (Wash.) 84 Pac. 627; Daffron v. Víaelectricity must be held to a high degree jestic Laundry (Wash.) 82 Pac. 1090. If the of care, and when they place those wires in appellant had constructive notice that boys close proximity to places or structures where were playing about, and sometimes climbing other persons may rightfully go for business upon the bridge, the fact of the city's officers or pleasure, it is incumbent upon them to being there to chase them away would likeuse a high degree of care to prevent any per- wise be known. The carrying of dangerous son from being injured by coming in contact electric wires upon high poles or the burying therewith. But we cannot go to the extent of them in trenches readily occurs to one of saying that the presence of such wires in as an appropriate requisite for the safety such a place constitutes an invitation to take of people who may have occasion to come hold of, or come in contact with, them. into the vicinity of said wires. But if a When a person, rightfully or wrongfully in boy, through curiosity, should dig up a such a place, sees a wire which he knows wire buried in the ground, or should climb may be highly dangerous, it is his duty to to the top of a high pole, and in either avoid coming in contact therewith, rather case take hold of a "live" wire and be than to accept its presence as an invitation injured. would it be seriously contended to make such contact.

that this was a circumstance which the 3. Respondent urges that this bridge and owner of the wire should be held to have anthe piers thereof and immediate suroundings ticipated and guarded against? To be sure, and the presence of the pigeons rendered it would be a possible contingency; but the situation an attractive one for boys, and would it be so probable that any reasonably that the appellant was under obligations to prudent person would feel it necessary to keep its dangerous wires out of the reach of be guarded against? said boys, or to keep them so completely in- The respondent invokes the rule that one sulated that they would be harmless in case must so use his own machinery as not a boy should take hold of, or come in contact to injure another. This is a wholesome with, them. While attorneys for respondent and salutory principle

and salutory principle of law; but it assert in their brief that they do not rely must have some limitations. . It does not upon the "turntable doctrine," it would seem mean that a man must operate his mathat they invoke principles that are nearly chinery, appliances, or other agencies in akin thereto. It will be noticed that it is such a manner as to absolutely insure and not alleged, proven, or urged that respondent guaranty the safety of every other person. was allured to the place of his injury by Such owner, in the operation of such agenreason of any attraction connected with any cies, is held to use that degree of care, forestructure, device, or property of appellant. sight, and discretion which a person of ordiThe things that constituted the attraction nary care and prudence would use under the which it is claimed drew him to this place same circumstances. As a matter of law, were features connected with the river, the it may be said that a person of ordinary care bridge, and the pigeons, and were matters and prudence, in the operation of an agency for the existence of which appellant was not so dangerous as electricity, would and responsible. It is urged by respondent that, should be exceedingly careful and so arrange while he may have been a trespasser as to the means of handling and transmitting this the owner of the bridge, the city, he was not powerful and mysterious element as to proa trespasser as against the appellant. If. tect from harm any person or persons whom under given circumstances, a person, in main- he might reasonably expect to be in a positaining a dangerous agency upon his own tion to receive harm therefrom. But to say premises, would not be liable for injuries that the owner or operator of an electric therefrom to a trespasser upon said premises plant should foresee and anticipate the presand would not be holden to anticipate the ence of children or others in places where presence of such trespasser, we do not see the ordinarily prudent, careful, and foreseewhy he should be holden to foresee the pres- ing person would not expect, or deem it ence of a trespasser upon adjoining property, likely for, them to be, would impose a buror why he should be under obligation to den and responsibility for which there is no guard against the possible presence of one justification in law. We do not think it can trespassing upon the adjoining premises so be said that this appellant should have anticinear as to be injured by said dangerous pated that boys would climb up this almost agency. Ordinarily a person whose duty it perpendicular pier and from it reach over is to furnish protection to others against and take hold of the electric wires strung a dangerous agency, fully complies with the upon its poles 30 or more feet above the law when he provides such a protection as ground, or that the city's watchmen and will safely guard against any contingency other servants there stationed would permit that is reasonably to be anticipated. He such an occurrence. If the company's re


sponsibility extended this far, it would be difficult to say where a limit could be fixed. In this state we see electric wires stretched on poles through our towns and cities, and along highways, through farms, orchards, and forests in the country. Can it be held that companies operating these wires must keep them out of reaching distance of every high tree, building, fence, wall, pole, or other place of elevation into or upon which a boy may possibly be allured by birds' nests or other attractions? Suppose birds should build their nests under the eaves of a sawmill that had a ladder attached to its side, and a boy, attracted by said ladder and birds' nests, should climb the ladder and purposely or inadvertently thrust his hand through a window against a running saw, in the upper story of said mill, would the owner of the mill be liable for the boy's injury? Suppose a merchant should keep dynamite, in order to have it out of the way of people, upon the roof of his store, and some bor, without the consent and against the wishes of the owner of adjoining premises, should climb a tree thereon for birds and, while np in the tree, reach over and explode some dynamite, would the owner thereof be holder for the injury thereby occasioned to the boy? Regardless of what the name may be, it seems to us that the contention of respondent is an invocation for an extension of the "turntable doctrine" beyond the limits vermitted by the law as heretofore announced by this and the great majority of the courts.

In the case of Clark v. Northern Pacific Ry. Co., 29 Wash. 139, 69 Pac. 636, 59 L. R. 1. 508, this court said: “Appellant also cites what are known as the 'turntable (ases.' These cases are

are based upon the theory that a turntable is a machine of such a nature as to attract children to play with it, and, being inherently dangerous for children to handle, negligence is predicated upon the failure to lock it, or securely fasten it so that it cannot be moved by children. The same principle has been applied where other structures or conditions existed, but the doctrine has not been uniformly adopted by American courts, and it has, indeed, been severely criticised. In Beach on Contributory Negligence (3d Ed.) 8 51a, the author observes that the trend of the more recent decisions is against it, and many cases are cited. This court applied the rule in a turntable case in Ilwaco Ry. & Nav. Co. v. Hedrick, 1 Wash. 446, 25 Pac. 335, 22 Am. St. Rep. 169; but, in view of the more modern tendency of the courts, we should, however, hesitate to extend the rule as one of general application to other conditions. For especially forcible reasoning upon this subject we refer to Delaware, L. & W. R. R. Co. v.

Reich, 61 N. J. Law, 635, 40 Atl. 682, 41 L. R. A. 831, 68 Am. St. Rep. 727. The respondent in the case at bar had not placed upon its premises a dangerous machine or device, that was in its nature and at once particularly attractive to children. The deceased boy neither meddled with nor was he injured by any such instrument. The attractive thing which it is claimed respond ent permitted upon its premises was the show.” A case involving similar consideration was that of Curtis y. Tenino Stone Quarries, 37 Wash. 335, 79 Pac. 955, where the court spoke as follows: "To hold, as a general and universal rule of law, that the owners of mills and factories must so construct and maintain their premises as to be reasonably safe for trespassers, infants, or adults, regardless of how they may gain admission, would be destructive of all industry and all property rights.” Discussing the doctrine now invoked by respondent, this court, in the case of Harris v. Cowles, 38 Wash. 336, 80 Pac. 537, 107 Am. St. Rep. 817, employed this language: "Whatever may be said of the wisdom of that rule, as applied to the one condition, established as it was by judicial decisions, but severely criticised by others refusing to follow it, still, when we contemplate its extension to the manifold other relations and conditions which arise in the affairs of life, we must see that it would be productive of litigation to such an extent as would greatly endanger the security of property interests. It is aptly suggested by respondent, in his brief, that swings, teeter boards, lumber piles, fences, gates, walls, buildings, trees, hanging on vehicles, and numerous other similar things are attractive to children. It will, therefore, be seen that, if this doctrine should be made one of general application for the protection of children against everything that may be especially attractive to them, it would result in requiring all property holders to assume toward children who may be attracted to their premises a degree of duty and care which properly belongs to parents or guardians." The unfortunate accident which befell respondent was an unusual and extraordinary one which we do not believe appellant could reasonably have anticipated. Under the pleadings and all of the evidence construed as favorably as possible in behalf of the respondent, we think liability on the part of appellant for this boy's injury is not established.

The judgment of the honorable superior court is reversed, and the cause remanded with instructions to dismiss the action.


(34 Mont. 564)

LINDSLEY v. McGRATIT et al. (Supreme Court of Montana. Dec. 11, 1906.) 1. TRIAL-INSTRUCTIONS-ASSUMPTIONS AS TO FACTS.

Instructions that, unless the assignee of a chattel mortgage had notice or knowledge of a prior mortgage to plaintiff's assignor, the verdict should be for defendants, and that the burden of proof is on the plaintiff to establish the fact that the assignee of the mortgage had notice of the prior mortgage, were properly refused as assuming that the assignee of the mortgage had paid value therefor.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, $$ 420–431.] 2. APPEAL-ILARMLESS ERROR-ADMISSION OF EVIDENCE. ,

In a contest between the holders of chattel mortgages for the possession of the property, any error in permitting a question to the mortgagor as to whether she had not made a statement showing that one of the mortgages was not made in good faith was harmless, where she answered in the negative.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 3, Appeal and Error, $ 4143.] 3. PRIXCIPAL AND AGENT AUTHORITY OF AGENT.

Where one held possession of property on which there was a chattel mortgage, and, acting under a writing which, in general terms, made him the agent of the holder of the mortgage, lie transferred the mortgage for value and the orig. inal holder makes no objection to his authority, the holder of a subsequent mortgage cannot complain of his want of authority.

(Ed. Yote.-For cases in point, see Cent. Dig. vol. 40, Principal and Agent, $$ 662-668.]

Apreal from District Court, Silver Bow County ; Geo. M. Bourquin, Judge.

Action by Ida Lindsley against John McGrath and another. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Maury & Hogevoll, for appellants. C. M. Parr, for respondent.

possession until the property was taken from them by the sheriff in this action. They deny that the taking or detention was wrongful, and deny that any demand was made upon them. They deny that plaintiff was damaged in any sum whatever. Defendants then set forth that on June 2, 1905, Anna Gardner was the owner, in possession, and entitled to the possession of this property ; that she then and there made, executed, and delivered to one Nannie Lemmon a certain promissory note for $1,000, due one year after date, bearing interest at 1 per cent. per month, interest payable monthly, and, to secure the payment of said sun, then and there executed and delivered to the said Nannie Lemmon a certain chattel mortgage on the property now in controversy; that upon the same day the defendant Case, for a valuable consideration, bought from Nannie Lemmon said note and mortgage; that thereafter, on June 8, 1905, he deemed his security unsafe for the reason that Anna Gardner had given possession of the property to Rodgers & Davenport, and so deeming his security unsafe, Case, acting through his agent, McGrath, took possession of the property and continued to hold the same until this action was commenced. The reply admits the execution and delivery of the note and mortgage by Gardner to Lemmon, but denies that there was any consideration whatever for either; alleges that they were made to hinder and defraud this plaintiff ; and also charges that there was a conspiracy entered into between Gardner, Case, and the attorneys for Lemmon to defraud this plaintiff out of her property. The reply further denies that there was any consideration for the transfer of the note and mortgage, or either of them, from Lemmon to Case. Upon the trial the plaintiff undertook to prove her right to the possession of the property by showing that on February 3, 1905, Anna Gardner, who was then the owner and in possession of the property, had executed and delivered to one Ada Stadler certain notes aggregating $2,750, and, to secure the payment of the same, had executed and delivered a chattel mort. gage upon the property in controversy; that thereafter, for a valuable consideration, Ada Stadler, acting through J. R. Davenport, who claimed to be her agent appointed by a power of attorney, had assigned the note and mortgage to the plaintiff after he had taken possession of the property under the mortgage. The power of attorney is as follows: “Know all men by these presents that we, J. J. Stadler and Ada Stadler, of the county of Meade, state of Kansas, have made, constituted, and appointed, and by these presents do make, constitute, and appoint, J. R. Davenport, of Silver Bow county, Montana, our true and lawful attorney, for us and in our names, places, and stead, giving and granting unto our said attorney full power and authority to do and

HOLLOWAY, J. This is an action in claim and delivery brought by Ida Lindsley against John McGrath and John Doe, whose true name was to plaintiff unknown at the time of the commencement of the action. The plaintiff claims to be the owner and entitled to the possession of certain personal property, consisting of household goods in a rooming house in Butte. She alleges that the defendants wrongfully took possession of the property and retained the same, and that its value is $2,750, and she claims to have been damaged in the sum of $500 by reason of its wrongful detention. She alleges that before the commencement of the action she made demand upon defendants for the return of the property, but this demand was refused. Defendant McGrath and one William Case made a joint answer, in which they say that Case is the person sued as John Doe. They deny the ownership or right of possession of plaintiff to the property; admit that it is worth $2,750; and admit that they took possession of it without the consent of the plaintiff, and retained such

87 P.-61

perform all and every act and thing whatso- gage. This must be so; for, if he did not ever requisite and necessary to be done pay anything for them, the rule announced in and about the premises as fully, to all would not have any application to him. It intents or purposes, as we might or could do is only applicable upon the assumption that if personally present, hereby ratifying and he had in fact paid value for them; and confirming all that our said attorney, J. R. whether in fact he had done so was an issue Davenport, shall lawfully do or cause to be directly before the jury for determination, done by virtue of these presents. In witness and any assumption by the court of such a whereof," etc. Upon the trial the witness fact would have been error. Gallick v. BorGardner was asked by counsel for plaintiff | deaux, 31 Mont. 328, 78 Pac. 583, and cases if she had not told plaintiff on the evening cited. For the reason stated, each of the of June 2d that she had that day given a instructions was properly refused. mortgage to Maury & Hogevoll, but that they 2. Counsel assign as error the ruling of the would release it any time she asked them, court in permitting the witness Gardner to and if she did not state that she would then answer the question stated above, as to go to Maury & Hogevoll's office and have whether she had not made a certain statethem undo what she had done that day, and ment to Mrs. Lindsley on the evening of that she left and soon afterwards returned, June 2d; but in their brief they argue an saying she could not do it, that they, mean- entirely different matter. They say: “The ing Maury & Hogeroll, refused to do it. This court erred in allowing evidence of Mrs. was objected to, but the objection was over- Gardner to be introduced to the effect that ruled, and the witness answered that she she, after the alleged conspiracy was comhad not made any such statement to the pleted, had made a statement to the fact plaintiff. At the close

At the close of the testimony that the mortgage to Lemmon was not made counsel for defendants moved the court to in good faith." But counsel are mistaken as direct a verdict in their favor upon five to the contents of the record. The record grounds; but, as only one is argued in appel- shows that Mrs. Gardner denied absolutely lant's brief, it will be unnecessary to state that she made any such statement; and the others. The ground of the motion argued therefore the error, if any, in asking the is that the evidence fails to show any au- question was harmless. The plaintiff inthority from Ada Stadler to J. R. Davenport | troduced the testimony of Mrs. Lindsley to to transfer the note and mortgage, or either the effect that Mrs. Gardner had made the of them, to the plaintiff. This motion was statement above. But this testimony went overruled. The defendants' requested the in without objection, so far as this record court to give instructions numbered 2 and 5, discloses. as follows: "No. 2. Unless you find that 3. In order to make out her case, plainWilliam Case had notice or knowledge of tiff called J. R. Davenport to show by what some prior mortgage to Ada Stadler, your authority he transferred to her the Stadler verdict should be for defendants." "No. 5. note and mortgage. Davenport assumed to The court instructs the jury that in this case act for Mrs. Stadler under the power of atthere is no evidence showing, or tending to torney, the terms of which are set out above. show, that William Case had any knowledge Appellant contends that the instrument is or notice of any chattel mortgage from Anna void for uncertainty—that Davenport is not Gardner to Ada Stadler, and that the burden thereby authorized to do any particular thing of prooi is on the plaintiff to establish the or act for Mrs. Stadler generally. While it fact that William Case had notice or knowl- must be admitted that the instrument is edge of some other mortgage. The fact that very uncertain in its terms, we are not prethe prior mortgage had been recorded would pared to say that it is void. It was not necnot be notice to Case, as it was not entitled essary that the authority exercised by Davento record.” The request was refused. The port be conferred in writing (Civil Code, $ jury returned a verdict in favor of the plain- 3085); and it is an elementary rule of the law tiff, and judgment was entered thereon ad- of agency that in a case of this character no judging plaintiff to be the owner and entitled particular form of words is necessary to conto the possession of the property, and that vey the authority or define the agent's powshe recover her costs. From this judgment ers. 5 Current Law, 65. Furthermore, in and an order denying his motion for a new determining the meaning of this instrument, trial, the defendant McGrath appeals.

the validity of which is called in question by The appellant makes the following assign- a third person, McGrath, who does not claim ments of error: (1) Error in the refusal of to have any interest in the property whatthe court to give defendants' requested in- ever, but acted only as agent for Case, who structions 2 and 5 above; (2) error in the has not appealed and therefore does not comadmission of evidence; and (3) error in the plain of the judgment, it should be liberally refusal of the court to direct a verdict in construed in favor of Mrs. Lindsley, who favor of the defendants.

claims that she has parted with value upon 1. In each of the requested instructions the assumption that Davenport had the auabove there is an assumption of fact which thority to do what he assumed to do while in was directly in dispute, viz., that Case had possession of the property. By express paid value for the Lemmon note and mort- terms in the writing Davenport is made the

agent for Mrs. Stadler. The scope of his authority is not defined accurately; but so long as his principal, Mrs. Stadler, is not complaining that he has exceeded the authority intended to be granted, this appellant cannot make that complaint for her. That being true, and Davenport having had possession of the property at the time of the transfer, and Mrs. Lindsley having parted with value upon the assumption that Davenport had the authority to transfer the note and mortgage, we shall not stop to inquire the precise effect of the writing so far as it relates to the scope of the agent's authority, but content ourselves with saying that Davenport was the agent of Stadler, and, as such, transferred the note and mortgage; and, in the absence of any complaint from the principal, we hold that the agent had authority to do what he purported to do. 1 Clark & Skyles on Agency, § 236. Further than this it is not necessary to go. • We have considered the assignments of error argued by appellant in his brief, but think he fails to show that any reversible error was committed.

The judgment and order are therefore affirmed.


BRANTLY, C. J., and MILBURN, J., concur.


COAL CO. et al. (Supreme Court of Montana. Dec. 8, 1906.) 1. EMINENT DOMAIN – CONDEMNATION PROCEEDINGS-APPEARANCE.

Under Code Civ. Proc. $ 2219, providing thąt all persons named or claiming an interest in property sought to be condemned may appear and answer, and section 2231, making the general provisions of the Code applicable to such proceedings, defendant must appear, either by demurrer or answer, and, if he fails to do so, he has no right to be heard in the subsequent proceedings. 2. SAME-FAILURE TO APPEAR-EFFECT.

Under Code Civ. Proc. $S 2219, 2231, requiring defendants in condemnation proceedings to appear and answer in order to participate in subsequent proceedings, failure to so appear does not invalidate the proceedings but the court must determine whether the use of the property is public use and ascertain the damages. 3. SAME-DEFECTS—WAIVER.

Where proceedings to condemn land were carried on as far as the order of condemnation, it is to be presumed that issues were properly made, and the plaintiffs cannot object that defendants failed to answer. 4. SAME-PLEADINGANSWER.

Neither the general provisions of the Code of Civil Procedure nor the part specially relating to condemnation proceedings require the defendant to set up his claim for damages in an answer by way of counterclaim.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 18, Eminent Domain, 88 519, 524.] 5. SAME-MEASURE OF COMPENSATION.

In determining the amount which defendant in condemnation proceedings for a railroad right of way is entitled to recover, the court is bound to take into consideration every element of value which would be considered if parties were negotiating a voluntary sale and

ascertain the market value of the lands after the right of way is taken.

[Ed. Note. For cases in point, see Cent. Dig. vol. 18, Eminent Domain, SS 363-370.] 6. SAME-SPECIAL DAMAGES-PLEADING-NECESSITY.

In condemnation proceedings, the damage to portions of defendant's land not actually traversed by the railroad acquiring the right of way were not special damages in the sense that they should be specially pleaded in order to be shown.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 18, Eminent Domain, 88 519, 524.] 7. SAME-ESTOPPEL.

A railroad seeking to acquire a right of way, but failing in its petition to mention land not taken or damages thereto, cannot be heard to say that the detriment to the part not described is special and must be pleaded before it can be shown. 8. EVIDENCE-HEARSAY-VALUE OF LAND-OFFER TO SELL.

In condemnation proceedings, evidence of offers for similar lands in the locality was not competent to prove the value of the land taken, because it was hearsay.

[Ed. Note. For cases in point, see Cent. Dig. vol. 20, Evidence, 1216.] 9. EMINENT DOMAIN – PROCEEDINGS EVIDENCE, VALUE OF PROPERTY.

Such evidence was incompetent as depending on a determination of collateral issues.

[Ed. Yote.--For cases in point, see Cent. Dig. vol. 20, Evidence, § 416.] 10. APPEAL - REVIEW-PARTY ENTITLED TO ALLEGE IRROR.

Appellant cannot complain of a ruling in his favor.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 3, Appeal and Error, $ 4052.] 11. SAME-HARMLESS ERROR.

Where, in proceedings to condemn a railroad right of way, the jury assessed the damages and benefits separately as required by statute, finding the items well within the extreme limits of the testimony adduced, the mere fact that certain witnesses were permitted to give their opinions as to damages sustained by defendants after deducting all benefits, and were not required to state the damages sustained and benefits derived by the building of the road serarately, if error, was harmless; the witnesses having been questioned fully as to the basis of their opinions, and the jury not having been misled.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, $ 4033.] 12. SAME-PARTY ENTITLED TO ALLEGE ERROR -ESTOPPEL.

In condemnation proceedings, defendant's witness was asked if defendant's land had increased in value by reason of the building of plaintiff's railroad to any greater extent than any other lands of similar character, and testified that they had not. Plaintiff objected that the testimony was immaterial and not proper re-examination. On appeal plaintiff's counsel argued that any increase in the market price of defendant's land generally or specially, by reason of the building of the railroad, should be set forth against any damages accruing to the portion not taken. Held that, if the argument were correct, the evidence was material, and plaintiff, having assumed a position on appeal which was the reverse of his position in the district court, could not complain.

[Ed. Note.For cases in point, see Cent. Dig. vol. 3, Appeal and Error, 8 4254.] 13. EMINENT DOMAIN — DAMAGES - INSTRUCTIONS.

In condemnation proceedings in the district court, an instruction that the jury should not consider the award theretofore made by the

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