
    Peters, Admx., v. Howenstein et al.
    
      Negligence —Bystander watching road-work — Killed by explosion of traction boiler — Owners of engine not liable, when.
    
    Recovery of damages can not be had for the death of one who was killed by the bursting of the boiler of a traction engine, which was being operated in a lane near a field where decedent was standing at the time of the explosion, and where the decedent was not an employe of those owning and operating the engine, and was not present by invitation, but was a mere onlooker idly watching the operation of the engine.
    (Decided March 3, 1916.)
    Error : Court of Appeals for Stark county.
    
      Mr. J. H. Robertson and Mr. Thomas F. Turner, for plaintiff in error.
    
      Messrs. Welty & Burt and Messrs. Taylor & Stewart, for defendants' in error.
   Houck, J.

This cause is here on error from the common pleas court of Stark county, the parties standing in the same relative positions as in the court below. The plaintiff, Rena Peters, brought suit in the common pleas court to recover of the defendants damages for the alleged wrongful death of her husband, Charles D. Peters, who was killed on the 5th day of February, 1914, by the explosion of the boiler of a traction engine owned by the defendants, while the same was being used in hauling a steam shovel owned by one George Gareaux.

Plaintiff avers in her petition that said boiler, engine and the various fixtures and attachments thereto were old, having on said 5th day of February, 1914, been in use about 15 years, and thereby had become greatly out of proper condition and repair for proper safety in the use of the same, in this, to-wit: the safety valve on said boiler did not work properly, would clog and not permit the same to blow off from said boiler when the pressure became great; the water-gauge cocks to said boiler were fast and would not turn; and said boiler was old, much corroded and worn, thin and leaky, thereby rendering the same weak, unfit, unsafe and insecure. Plaintiff avers that all of said defective, unsafe and insecure conditions of said boiler and attachments, as well as the age and long continued use of said boiler and its attachments, were on the said 5th day of February, 1914, and for a long period of time prior thereto, well known to said defendants, and to each of them, or that said defendants, in the exercise of reasonable care, could and should have known of the same, and that by reason of the premises the said defendants were guilty of negligence, which caused the injuries resulting in the death of plaintiff’s decedent, and that the same was caused without any fault or negligence on the part of said decedent; and plaintiff therefore prays for judgment against the defendants in the sum of $10,000.

The defendants filed an answer in the nature of a general denial.

The cause was tried in the common pleas court, and at the conclusion of all the evidence, after both plaintiff and defendants had rested their case, the defendants moved the court to direct the jury to render a verdict in their favor. The motion was sustained by the court, and the jury returned a verdict for the defendants. To the sustaining of this motion by the court and the court’s instructing the jury to return a verdict for the defendants, error is prosecuted to this court seeking a reversal of the judgment below.

The undisputed and conceded facts in this case, as disclosed by the bill of exceptions, are as follows: The defendants owned the traction engine and boiler in question, and were invited, through Mr. Weston C. Howenstein, one of the defendants, to assist one George Gareaux in moving a steam shovel upon the public highway between North Industry and East Sparta, said Gareaux at that time having the contract for the grading, paving and improving of the highway, and defendants, living in' the vicinity where the work was being done, took the engine to the place where the steam- shovel was located, the same being immediately in front of the Steinmetz farm, about three-quarters of a mile south of Howenstein Station, there being at-that place in the road a highway leading to the east, and beginning on the east side of the road, known as the Steinmetz lane. Steinmetz’s fields were inclosed by fences, and plaintiff’s decedent was not engaged in any part of the work with Gareaux or the defendants, or either of them, and was not invited to the place in question, but out of mere idle curiosity, walked from Howenstein Station, southward in the field of Steinmetz, and stood with another person in the field, back from the lane some little distance from the engine and boiler in question, watching the engine move the shovel. While the engine was so engaged the boiler exploded and plaintiff’s decedent was struck by a broken part of the same, and as a result of said injuries departed this life the following day.

The defendants disclaim any liability, maintaining that they were not negligent in the operation of their engine or the boiler belonging to same, that plaintiff’s decedent was a trespasser, or a mere onlooker, and thereby assumed the risk by standing and remaining in the position where he was at the time of the accident, and that by reason of the premises the defendants owed no duty to the plaintiff’s decedent save and except not to maliciously, intentionally or wantonly injure him.

We are free to say that the real question presented by the facts as disclosed in this case has never been passed upon by any court, so far as we know, and we have been unable to find any reported case in this or any other state covering the exact facts as shown by the record in the instant case.

What duty, if any, did the defendants owe to the plaintiff’s decedent? The decedent was not in the employ of the defendants, nor had he been invited or requested to be present and occupy the place and position he did when the unfortunate accident occurred. He was simply an onlooker, an uninvited guest, and notwithstanding the fact that the defendants might have been negligent in operating the engine and boiler the question remains, Were the defendants liable in law to the plaintiff under these circumstances ? In other words, What duty did the defendants owe to plaintiff’s decedent, taking into consideration all the circumstances and facts of the case?

It will be conceded that the operation of a traction engine on the public highway is not unlawful, nor is it a nuisance in itself. If it becomes a nuisance, it is by reason of the fact of the way and manner it is operated, and not because it is a traction engine. The decedent not being an employe of the defendants, not being present by invitation, and not about any business which would require him or his presence at the place where the injury occurred, but, upon the other hand, being there for the sole and only purpose, so far as the facts disclose, of satisfying an idle curiosity as to the operation of the engine and the steam shovel, can it be properly claimed that the defendants owed to him any legal or lawful obligation save and except that they would not wantonly, intentionally and maliciously injure him?

Under these facts and circumstances we think the only duty which the defendants owed to plaintiff’s decedent was the duty of not wantonly or intentionally injuring him, and there is no evidence submitted that would in any way tend to prove that the defendants wantonly or in any way intentionally injured the decedent.

Taking this view of the law applicable to the facts in the present case, we think the trial judge committed no error in sustaining the motion to direct the jury to return a verdict for the defendants. Finding no error in the record, the judgment below should be affirmed.

Judgment affirmed.

Shields and Powell, JJ., concur.  