Page images
PDF
EPUB

in its entirety we do not believe) would not apply to the facts of this case, for the reason, as already stated, that respondent did not "rightfully go for business or pleasure" up or down this pier. People who have occasion to use wires highly charged with electricity must be held to a high degree of care, and when they place those wires in close proximity to places or structures where other persons may rightfully go for business or pleasure, it is incumbent upon them to use a high degree of care to prevent any person from being injured by coming in contact therewith. But we cannot go to the extent of saying that the presence of such wires in such a place constitutes an invitation to take hold of, or come in contact with, them. When a person, rightfully or wrongfully in such a place. sees a wire which he knows may be highly dangerous, it is his duty to avoid coming in contact therewith, rather than to accept its presence as an invitation to make such contact.

3. Respondent urges that this bridge and the piers thereof and immediate suroundings and the presence of the pigeons rendered the situation an attractive one for boys, and that the appellant was under obligations to keep its dangerous wires out of the reach of said boys, or to keep them so completely insulated that they would be harmless in case a boy should take hold of, or come in contact with, them. While attorneys for respondent assert in their brief that they do not rely upon the "turntable doctrine," it would seem that they invoke principles that are nearly akin thereto. It will be noticed that it is not alleged, proven, or urged that respondent was allured to the place of his injury by reason of any attraction connected with any structure, device, or property of appellant. The things that constituted the attraction which it is claimed drew him to this place were features connected with the river, the bridge, and the pigeons, and were matters for the existence of which appellant was not responsible. It is urged by respondent that, while he may have been a trespasser as to the owner of the bridge, the city, he was not a trespasser as against the appellant. If, under given circumstances, a person, in maintaining a dangerous agency upon his own premises, would not be liable for injuries therefrom to a trespasser upon said premises and would not be holden to anticipate the presence of such trespasser, we do not see why he should be holden to foresee the presence of a trespasser upon adjoining property, or why he should be under obligation to guard against the possible presence of one trespassing upon the adjoining premises so near as to be injured by said dangerous agency. Ordinarily a person whose duty it is to furnish protection to others against a dangerous agency, fully complies with the law when he provides such a protection as will safely guard against any contingency that is reasonably to be anticipated. He

is not legally bound to safeguard against occurrences that cannot be reasonably expected or contemplated as likely to occur. Decker v. Stimson Mill Co., 31 Wash. 522, 72 Pac. 98; Johnston v. Great Northern Ry. Co. (Wash.) 84 Pac. 627; Daffron v. Majestic Laundry (Wash.) 82 Pac. 1090. If.the appellant had constructive notice that boys were playing about, and sometimes climbing upon the bridge, the fact of the city's officers being there to chase them away would likewise be known. The carrying of dangerous electric wires upon high poles or the burying of them in trenches readily occurs to one as an appropriate requisite for the safety of people who may have occasion to come into the vicinity of said wires. But if a boy, through curiosity, should dig up wire buried in the ground, or should climb to the top of a high pole, and in either case take hold of a "live" wire and be injured. would it be seriously contended that this was a circumstance which the owner of the wire should be held to have anticipated and guarded against? To be sure, it would be a possible contingency; but would it be so probable that any reasonably prudent person would feel it necessary to be guarded against?

The respondent invokes the rule that one must so use his own machinery as not to injure another. This is a wholesome and salutory principle of law; but it must have some limitations. It does not mean that a man must operate his machinery, appliances, or other agencies in such a manner as to absolutely insure and guaranty the safety of every other person. Such owner, in the operation of such agencies, is held to use that degree of care, foresight, and discretion which a person of ordinary care and prudence would use under the same circumstances. As a matter of law, it may be said that a person of ordinary care and prudence, in the operation of an agency so dangerous as electricity, would and should be exceedingly careful and so arrange the means of handling and transmitting this powerful and mysterious element as to protect from harm any person or persons whom he might reasonably expect to be in a position to receive harm therefrom. But to say that the owner or operator of an electric plant should foresee and anticipate the presence of children or others in places where the ordinarily prudent, careful, and foreseeing person would not expect, or deem it likely for, them to be, would impose a burden and responsibility for which there is no justification in law. We do not think it can be said that this appellant should have anticipated that boys would climb up this almost perpendicular pier and from it reach over and take hold of the electric wires strung upon its poles 30 or more feet above the ground, or that the city's watchmen and other servants there statióned would permit such an occurrence. If the company's re

sponsibility extended this far, it would be | Reich, 61 N. J. Law, 635, 40 Atl. 682, 41 L.

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 boy, without the consent and against the wishes of the owner of adjoining premises, should climb a tree thereon for birds and, while up in the tree, reach over and explode some dynamite, would the owner thereof be holden 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 permitted 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. A. 508, this court said: "Appellant also cites what are known as the 'turntable cases. These cases 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.) § 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.

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 respondent permitted upon its premises was the show." A case involving similar consideration was that of Curtis v. Tenino Stone Quarries, 37 Wash. 355, 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. 847, 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 degrée 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.

MOUNT, C. J., and RUDKIN, FULLERTON, HADLEY, CROW, and DUNBAR, JJ.,

concur.

1

(34 Mont. 564)

LINDSLEY v. McGRATH 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-HARMLESS 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. PRINCIPAL 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, he transferred the mortgage for value and the original holder makes no objection to his authority, the holder of a subsequent mortgage cannot complain of his want of authority.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 40, Principal and Agent, §§ 662-668.] Appeal 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.

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

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 sum, 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 mortgage 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 astorney full power and authority to do and

perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises as fully, to all intents or purposes, as we might or could do if personally present, hereby ratifying and confirming all that our said attorney, J. R. Davenport, shall lawfully do or cause to be done by virtue of these presents. In witness whereof," etc. Upon the trial the witness Gardner was asked by counsel for plaintiff if she had not told plaintiff on the evening of June 2d that she had that day given a mortgage to Maury & Hogevoll, but that they would release it any time she asked them, and if she did not state that she would then go to Maury & Hogevoll's office and have them undo what she had done that, day, and that she left and soon afterwards returned, saying she could not do it, that they, meaning Maury & Hogevoll, refused to do it. This was objected to, but the objection was overruled, and the witness answered that she had not made any such statement to the plaintiff. At the close of the testimony counsel for defendants moved the court to direct a verdict in their favor upon five grounds; but, as only one is argued in appellant's brief, it will be unnecessary to state the others. The ground of the motion argued is that the evidence fails to show any authority from Ada Stadler to J. R. Davenport to transfer the note and mortgage, or either of them, to the plaintiff. This motion was overruled. The defendants requested the court to give instructions numbered 2 and 5, as follows: "No. 2. Unless you find that William Case had notice or knowledge of some prior mortgage to Ada Stadler, your verdict should be for defendants." "No. 5. The court instructs the jury that in this case there is no evidence showing, or tending to show, that William Case had any knowledge or notice of any chattel mortgage from Anna Gardner to Ada Stadler, and that the burden of proo is on the plaintiff to establish the fact that William Case had notice or knowledge of some other mortgage. The fact that the prior mortgage had been recorded would not be notice to Case, as it was not entitled to record." The request was refused. The jury returned a verdict in favor of the plaintiff, and judgment was entered thereon adjudging plaintiff to be the owner and entitled to the possession of the property, and that she recover her costs. From this judgment and an order denying his motion for a new trial, the defendant McGrath appeals.

The appellant makes the following assignments of error: (1) Error in the refusal of the court to give defendants' requested instructions 2 and 5 above; (2) error in the admission of evidence; and (3) error in the refusal of the court to direct a verdict in favor of the defendants.

gage. This must be so; for, if he did not pay anything for them, the rule announced would not have any application to him. It is only applicable upon the assumption that he had in fact paid value for them; and whether in fact he had done so was an issue directly before the jury for determination, and any assumption by the court of such a fact would have been error. Gallick v. Bordeaux, 31 Mont. 328, 78 Pac. 583, and cases cited. For the reason stated, each of the instructions was properly refused.

2. Counsel assign as error the ruling of the court in permitting the witness Gardner to answer the question stated above, as to whether she had not made a certain statement to Mrs. Lindsley on the evening of June 2d; but in their brief they argue an entirely different matter. They say: "The court erred in allowing evidence of Mrs. Gardner to be introduced to the effect that she, after the alleged conspiracy was completed, had made a statement to the fact that the mortgage to Lemmon was not made in good faith." But counsel are mistaken as to the contents of the record. The record shows that Mrs. Gardner denied absolutely that she made any such statement; and therefore the error, if any, in asking the question was harmless. The plaintiff introduced the testimony of Mrs. Lindsley to the effect that Mrs. Gardner had made the statement above. But this testimony went in without objection, so far as this record discloses.

3. In order to make out her case, plaintiff called J. R. Davenport to show by what authority he transferred to her the Stadler note and mortgage. Davenport assumed to act for Mrs. Stadler under the power of attorney, the terms of which are set out above. Appellant contends that the instrument is void for uncertainty-that Davenport is not thereby authorized to do any particular thing or act for Mrs. Stadler generally. While it must be admitted that the instrument is very uncertain in its terms, we are not prepared to say that it is void. It was not necessary that the authority exercised by Davenport be conferred in writing (Civil Code, § 3085); and it is an elementary rule of the law of agency that in a case of this character no particular form of words is necessary to convey the authority or define the agent's powers. 5 Current Law, 65. Furthermore, in determining the meaning of this instrument, the validity of which is called in question by a third person, McGrath, who does not claim to have any interest in the property whatever, but acted only as agent for Case, who has not appealed and therefore does not complain of the judgment, it should be liberally construed in favor of Mrs. Lindsley, who claims that she has parted with value upon the assumption that Davenport had the authority to do what he assumed to do while in possession of the property. By express

1. In each of the requested instructions above there is an assumption of fact which was directly in dispute, viz., that Case had 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.

Affirmed.

BRANTLY, C. J., and MILBURN, J., con

cur.

(34 Mont. 545) YELLOWSTONE PARK R. CO. v. BRIDGER COAL CO. et al.

(Supreme Court of Montana. Dec. 8, 1906.) 1. EMINENT DOMAIN CONDEMNATION PROCEEDINGS-APPEARANCE.

Under Code Civ. Proc. § 2219, providing that 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. §§ 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-PLEADING ANSWER.

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, §§ 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, §§ 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, §§ 519, 524.] 7. SAME-ESTOPPEL.

A railroad seeking to acquire a right of way, but failing in its petition to mention the 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 DENCE-VALUE OF PROPERTY.

EVI

Such evidence was incompetent as depending on a determination of collateral issues. [Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, § 416.]

10. APPEAL-REVIEW-PARTY ENTITLED TO ALLEGE ERROR.

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 separately, 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, § 4254.]

13. EMINENT DOMAIN-DAMAGES - INSTRUC

TIONS.

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

« PreviousContinue »