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City of Indianapolis v. Emmelman.

condition of safety, for those who in the pursuit of their own pleasure or convenience pass over such premises, even though it be with the acquiescence of the owner. Persons passing over premises of that description exercise the privilege with its attending perils, and this without distinction as to whether or not they have arrived at an age of discretion.

Unless contrivances are placed on such premises, with an actual or constructive intent to hurt intruders, the proprietor is not liable for injuries resulting to persons, by reason of the condition in which the premises have been left, or from the prosecution of a business thereon, in which the owner had a right to engage. Evansville, etc., R. Co. v. Griffin, 100 Ind. 225, and cases cited; Gillespie v. McGowan, 100 Penn. St. 144; s. c., 45 Am. Rep. 365; Gramlich v. Wurst, 86 Penn. St. 74; s. c., 27 Am. Rep. 684; Cauley v. Pittsb., etc., Ry. Co., 95 Penn. St. 398; s. c., 40 Am. Rep. 664; McAlpin v. Powell, 70 N. Y. 126; s. c., 26 Am. Rep. 555; Hargreaves v. Deacon, 25 Mich. 1; Burdick v. Cheadle, 26 Ohio St. 393; s. c., 20 Am. Rep. 767.

The foregoing and many other analogous cases, which might be cited, proceed upon the theory that the person sought to be held liable had done nothing to produce injury to others who voluntarily strayed upon or invaded the premises on which the injury occurred.

In all such cases the owner may dig an excavation in his own land, not substantially adjoining a public highway, and no action lies against him by one who has fallen into the excavation. Hardcastle v. South Yorkshire Ry. Co., 4 Hurlst. & Nor. 67; Hounsell v. Smyth, 29 L. J. 203 (7 C. B. [N. S.] 731); Pittsburgh, etc., R. Co. v. Bingham, 29 Ohio St. 364; s. c., 23 Am. Rep. 751; Sweeny v. Old Colony, etc., R. Co., 10 Allen, 368; Knight v. Abert, 6 Penn. St. 472; s. c., 48 Am. Dec. 478; Nicholson v. Erie Ry. Co., 41 N. Y. 525.

But there is a clear distinction between the cases cited and the case where an excavation is made in or so near a highway as that one, while rightfully using the highway, may without fault sustain injury by falling into the excavation. Not less clear is the distinction between a case in which an excavation is made, or something calculated to amuse or attract children is done or left, at a place where the child has a right to be, and one in which the same thing is done at a place, where in order to reach the place of danger, the child becomes an intruder upon the premises of another.

City of Indianapolis v. Emmelman.

Whoever while passing along, or when properly in a public street, suffers an injury while exercising the degree of care which the law requires of such persons, by falling into an excavation which has been made in or near such street, is entitled to maintain an action for such injury against the person making the excavation. In such a case, the person making the excavation comes under an obligation to make it safe in respect to all persons who have a right to use the street.

Streets are open to persons of all ages, and children are and must be permitted, to some extent at least, to go upon the streets of towns and cities, without incurring the imputation of negligence upon themselves or their parents. It would be intolerable to hold as matter of law, that a parent, having no knowledge of the presence or probability of danger, was nevertheless guilty of negligence in permitting a five-year old child to pass beyond the door yard into the street without an attendant. Whoever therefore does any thing in, or immediately adjacent to a public street, calculated to attract children of the vicinity into danger, which they cannot appreciate, owes the duty of protecting them by suitably guarding the source of danger, or in case this is impracticable, by giving timely warning to their parents and guardians of the existence of the danger. City of Chicago v. Hesing, 83 Ill. 204; s. c., 35 Am. Rep. 378; City of Chicago v. Major, 18 Ill. 349; Niblett v. Nashville, 12 Heisk. 684; s. c., 27 Am. Rep. 755; Graves v. Thomas, 95 Ind. 361; s. c., 48 Am. Rep. 727; McAlpin v. Powell, supra; Beck v. Carter, 68 N. Y. 283; s. c., 23 Am. Rep. 175; 2 Dill. Mun. Corp., § 1005.

The right of a child to go or be in or upon a street is in no way dependent upon the occupation or pecuniary condition of its parents. Mayhew v. Burns, 103 Ind. 328.

If a person of discretion, while attempting to pass over the stream in question where it crossed Spruce street, had fallen into the pit into which the child fell, no doubt could be entertained that such person, if free from contributory fault, might have recovered for an injury sustained, or if the plaintiff, without knowledge of the pit, had permitted his horse to go there for water, and it had fallen into the unguarded hole and had been injured, the liability of the city would have been beyond question.

As we have seen, the liability of the city is precisely the same in case a child, rightfully in a street, sustains injury from a defect

City of Indianapolis v. Emmelman.

created therein by the city, as in the case of an adult who is injured while free from fault from a like cause.

It would shock all sense of justice to hold that a city might dig a pit in a street and leave it so that children might be lured into it, and yet deny to parents, who were without fault, any remedy for the loss of a child.

Considered in the light of what has been said, it seems clear to us that the demurrer to the complaint was properly overruled.

The excavation into which the appellee's son fell was made in Spruce street, at a point where it crosses Pleasant run. It was made in the bed of a shallow stream, and left alone unguarded on a July day, with knowledge that children were accustomed to play in the vicinity. The city must be held to know that children are attracted to such a place in July weather. They were not intruders. It was gross carelessness on the part of the city, with such knowledge, to leave an unguarded pit filled with water in the street, into which an unsuspecting child might fall.

· An inference of neglect on the part of the appellee, which might otherwise have arisen, is repelled by the averment that both he and his wife were ignorant of the existence of danger at the place in question, and by the general averment that both the parents and son were without fault.

Upon issues made the case was tried by a jury, who returned a geueral verdict for the plaintiff, assessing his damages at $700, and also returned answers to interrogatories which need not be further noticed, except to say they contain nothing which controls the general verdict.

It is next contended that the evidence fails to sustain the finding of the jury. It would serve no useful purpose to rehearse the testimony to any extent. An examination of it has led us to the conclusion that all the material averments of the complaint are fairly proved by the evidence.

Conceding all that has been contended for in respect to the condition of the pit, the levee, and the street and run at the time and place of the sad occurrence, the fact remains that the city made an excavation in a street, at a place where it knew children living in the vicinity were accustomed to play, and where they had a right to be, at all proper times, without being intruders upon the premises, or invaders of the rights of any one.

In the absence of the workmen, that the children went into the shallow stream to play, was precisely what the appellant might have

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expected. It owed them the duty to guard the pit in the street so that they might not fall into it and perish. Neither the father nor mother knew of nor had they reason to suspect any danger at the place in question. It was therefore not negligence to permit the child to be, with another, as the mother supposed it was, at such a place so near its home.

Over the appellant's objection the court permitted the appellee's wife to testify that she had never before the drowning of her son heard of any one being drowned in Pleasant run. In connection with all the other circumstances testified to by the witness, showing the character of the stream, and its comparative safety for children before the excavation was made, this was not objectionable.

Certain instructions were asked by the appellant and refused by the court. Without further reference to the instructions asked and refused, it may suffice to say, within the principles already referred to upon the subject of the appellant's duty and the circumstances under which the appellant would be guilty of contribu tory negligence, the instructions were properly refused.

Cases which impute negligence to parents who permit children of tender years to wander unattended in the vicinity of and upon railroad tracks, or other places of known or probable danger, are not controlling in a case where as here a child is permitted to go to a place at which there is no reason to suspect danger, and which would have been safe but for the breach of duty of the appellant. We find no error.

The judgment is affirmed, with costs,
Rehearing denied.

Judgment affirmed.

POCOCK V. REDINGER.

(108 Ind. 573.)

Will-description of land— mistake.

A will contained this provision: "As to my real estate, I dispose of it as follows: I own the east half of the north-west quarter," etc., "and I hereby give and bequeath the same to my son," etc. The testator did not own the east half of the north-west quarter, but did own the west half. Held, that the will should be made to operate upon the land intended. (See note, p. 74.)

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A. C. Capron and A. Johnson, for appellants.

M. A. O. Packard, O. M. Packard and C. P. Drumond, for appellee.

ELLIOTT, C. J. The will of Catherine E. Redinger contains, among others, this provision: "As to my real estate, I dispose of it as follows: I own the east half of the north-west quarter of section thirty-four, township thirty-two north, of range three east, in Marshall county, Indiana and I hereby give and bequeath the same to my son, Charles A. Redinger, as and for his own absolute property forever. I also own the east forty-six acres off of the south sixty-three acres of the south half of the south-west quarter of section twenty-eight, township thirty-two north, of range three east, Marshall county, Indiana, which should the same remain undisposed of at my decease, I desire my executor to appraise and sell.

The testatrix did not own the east half of the quarter section described in the will, but she did own the west half of that quarter section. The facts given in evidence show very clearly that she intended to devise to the appellee the quarter section owned by her, and that she made a mistake in specifically describing it.

The question in the case, as stated by counsel, is, whether it was competent to show by extrinsic evidence that a mistake was made in describing the land devised?

The general rule undoubtedly is, as the appellants contend, that a mistake in a will cannot be shown by parol evidence. Judy v. Gilbert, 77 Ind. 96; s. c., 40 Am. Rep. 289, and cases cited; McAlister v. Butterfield, 31 Ind. 25; Funk v. Davis, 103 Ind. 281. But we do not regard this case as within the rule, for in our opinion, the mistake is shown by the words of the will when applied to the subject matter upon which, as its language discloses, it was intended to operate. The words of the will show that the provision under consideration was intended to devise the land owned by the testatrix, for she introduces the subject by the words, "As to my real estate," and then says: "I own the east half of the north-west quarter of section thirty-four," and "I devise the same" to Charles A. Redinger, thus clearly showing that she meant to devise the land she owned. The words used in disposing of the second of the two parcels which

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