
    Harris, Administratrix, Respondent, vs. Eastern Wisconsin Railway & Light Company, Appellant.
    
      February 20
    
    March 11, 1913.
    
    
      Negligence causing death: Attraction to children on street: Failure to guard against meddling.
    
    1. One who maintains in the public street an unguarded objeet or condition likely to attract children to meddle or play therewith, with the probable result of causing injuries to themselves or others lawfully using the street, is guilty of actionable negligence, providing such person knows or is chargeable with knowledge of the attractiveness of the object or condition and the consequent probability of such meddling and resulting injuries.
    
      2. Upon an electric light tower standing in the street a platform about eighteen feet from the ground was reached by steps. Prom that point defendant’s employee who cared for the lights pulled himself up in a basket suspended from the top of the tower by means of a steel cable running over pulleys and having a counterweight at the other end. Ballast consisting of loose stones was placed in the basket so that its weight, with that of the operator, was about fifteen pounds less than the counterweight; and when at the bottom the basket was fastened to the frame of the tower by a chain and hook, without any lock. The city owned the tower, but the basket and hoisting apparatus, though at long intervals used by the city, were practically under the control of the defendant company, which had the lighting contract. Defendant knew that boys were accustomed to play on the platform. At the time of the accident, two boys (one a son of plaintiff’s intestate) were so playing when the basket in some way became unfastened and started up. When it struck the top the ballast stones flew out and one of them in falling killed the intestate. The jury found that the death was proximately caused by defendant’s negligence in failing to lock the chain which fastened the basket and in using loose stones as ballast. Held, that defendant was liable, under the rule above stated.
    Appeal from a judgment of tbe circuit court for Eond du Lac county: Chester A. Eowlee, Circuit Judge.
    
      Affirmed.
    
    This is an action for damages resulting from tbe death of H. B. Harris, tbe plaintiff’s busband, wbicb death is alleged to have been caused by tbe negligence of tbe defendant. Tbe facts are that on tbe 2d of June, 1911, at about 6:30 p. m., the deceased was standing on tbe sidewalk on tbe north side of West Arndt street in tbe city of Eond du Lac, talking with two other persons. He was some twelve or fifteen feet from an electric light tower owned by tbe city. Tbe tower was about 150 feet in height, triangular in form, constructed of iron rods and piping, each side of tbe triangle being about five feet in width at tbe bottom, and it was used for lighting a section of tbe city by means of a cluster of electric lights at tbe top. It was constructed by the city twenty years or more ago, but was still in active use. Tbe defendant company, under a contract with tbe city, furnished tbe light used and the lamps and kept the same lighted and in repair. About eighteen feet from the ground there was a platform about three feet in width on each side of the triangle with a three-foot railing on the outside. On one of the corner posts were iron steps a foot apart, extending from the ground to the top. In the center of the space within the triangle was a hexagonal iron basket two feet in diameter, three feet in depth, and having a wooden floor. This basket was constructed and used for the purpose of enabling the employee who trimmed the electric lights to elevate himself to the top of the tower and lower himself again to the eighteen-foot platform. It was arranged with two pulleys, two guide ropes, a steel cable, and a counterweight of 250 pounds, so that the employee could stand in the basket and pull himself to the top by means of a rope. At the time of the accident in question and for a long time previously, three large paving stones were kept loose in the bottom of the basket as ballast. The weight of the basket, the operator, and the stones was about fifteen pounds less than that of the counterweight, so that the operator was obliged to exert a lifting strength of about fifteen pounds when he used the basket. The basket was also used by the city if at any time it wished to inspect the tower. The evidence shows that it had been so used by the city twice since 19 07 up to the time of the accident, the last time being May 21th. The lights on the tower were expected to burn without attention for ninety hours, and an employee of the defendant company was accustomed to ascend in the basket to trim them when this time had elapsed. 'This necessitated an ascent by the employee two or three times a month. The basket (without a passenger) being lighter than the counterweight would naturally shoot up to the top of the tower if not fastened down when the employee descended, consequently it was necessary to fasten it in some way at the eighteen-foot platform when not in use. This had always been done by wrapping a chain some four feet in length around'the rod composing the top circumference of the basket and around one of the horizontal rods of the tower at the level of the platform, and hooking an iron hook at one end of the chain into one of the links thereof. It appeared that boys frequently went up to the platform and played there, and that two boys were playing at the time in question on the platform and about the basket, one of whom was the thirteen-year-old son of Harris. Suddenly the basket became unfastened and started upwards. No witness testified as to the manner in which it became unfastened, but one of the men with whom the deceased was talking heard the basket going up and gave the alarm. The basket increased its speed as it went up, and when it struck the top the ballast stones flew out and one of them, weighing over twenty pounds, struck the deceased on the head and chest, inflicting injuries from which he soon died.
    The jury returned a special verdict in which they found (1) that boys customarily played on the platform at and prior to the time of the accident; (2) that the defendant knew of this custom, and (3) that in view of these facts ordinary care required the locking of the chain so as to prevent meddling with or unfastening of the basket; (4) that the lack of ordinary care so found was the proximate cause of Harris’s death; (5) that the use of loose stones for ballast was lack of ordinary care, which (6) was the proximate cause of Harris’s death; (7) that Harris did not know that the boys were on the platform at the time of the accident; (8) that he knew of the custom of boys playing there; (9) that notwithstanding that knowledge he exercised ordinary care in being where he was at the time without ascertaining that boys were not on the landing; (10) that Harris did not know that his son was in the habit of playing on the platform; (11) that the pecuniary damage suffered by the widow was $3,581. From judgment for the plaintiff on this verdict the defendant appeals.
    
      T. L. Doyle, for the appellant.
    For the respondent there was a brief by Reilly, Fellenz & Reilly, and oral argument by M. K. Reilly.
    
   WiNslow, 0. J.

Tbe case is certainly novel, but tbe principles governing it bave ceased to be doubtful. It is settled in this jurisdiction that one wbo maintains in tbe public street an unguarded object or condition likely to attract children to meddle or play therewith, witb tbe probable result of causing injuries to themselves or others lawfully using tbe street, is guilty of actionable negligence, providing such person knows or is chargeable witb knowledge of the attractiveness of tbe object or condition and tbe consequent probability of such meddling and resulting injuries. Busse v. Rogers, 120 Wis. 443, 98 N. W. 219; Kelly v. Southern Wis. R. Co., ante, p. 328, 140 N. W. 60.

It is not necessary, of course, that tbe defendant be tbe owner of the attractive nuisance, — it is sufficient if be maintain it. He must bave tbe power of control. In tbe present case tbe defendant company did not own tbe tower, but tbe evidence shows, presumptively at least, that they were in practical control of tbe basket and tbe apparatus for hoisting it. Otherwise they could not fulfil their contract witb tbe city to keep tbe lamps lighted. Tbe, fact that at long intervals a city official might use tbe basket to inspect tbe tower can make no material difference. It cannot affect tbe right, nay, tbe duty, of the lighting company to see that tbe basket was safely moored, if it knew or ought to bave known of tbe danger of such an occurrence as the present. It was using and was rightfully using tbe whole contrivance for its own purposes and its own profit. Tbe city would bave no right to object to tbe installation of any reasonable device which would make it safe. A padlock witb duplicate keys, one to be furnished to the city, would bave insured safety. These principles really determine the case. The jury on sufficient evidence found negligence of the defendant proximately caus-; ing the death .of Harris, and acquitted him of contributory negligence. No detail errors are assigned which are of sufficient importance to require discussion.

By the Court. — Judgment affirmed.  