Long v. Sutherland-Backer Co. ( 1966 )

The opinion of the court was delivered by

Sullivan, S. J. A. D.

Plaintiff, as administrator ad prosequendum,, recovered a $13,500 judgment in a suit under the Death Act. The decedent was an infant trespasser on defendant’s property. He was killed when a heavy two-wheel cement mixer with which he and three other boys were playing was caused to topple forward.

The boys had entered upon defendant’s property through a hole in the wall of defendant’s shed which hole had existed for “some time” and had been used by boys on prior occasions to gain entry to defendant’s property. The mixer had been left by defendant in an upright position with the towing bar raised. Decedent, who was in front of the mixer, was pinned under the towing bar when the machine toppled forward.

We are satisfied that the evidencie made out a jury question of defendant’s liability within the requirements of section 339 of the Restatement of Torts. We also conclude that the court’s charge as a whole was adequate as well as correct. Defendant’s objections to it are not well taken. The verdict of $13,500 was not excessive as a matter of law.

Affirmed.