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If a thing is artificial, uncommon, attractive, and dangerous, and may, with reasonable effort and expense, be guarded and made reasonably safe, then the duty to make it so may not be disregarded, and the jury, under all the facts and circumstances of a particular case may so find. These principles underlie the doctrine of the turntable cases, and that doctrine is sound, and it should not be limited to turntables and machinery of like character. To so limit it, in effect, applies one standard of care to one kind of dangerous things, and a different standard to another equally attractive and equally dangerous, which is placed upon premises and there maintained under similar circumstances and conditions. Therefore, the doctrine of the turntable cases should be applied to all things that are uncommon and are artificially produced, and which are attractive and alluring to children of immature judgment and discretion, and are inherently dangerous, and where it is practical to guard them without serious inconvenience and without great expense to the owner.
The city, in September, 1904, and for many years prior thereto, owned and maintained a system of waterworks together with a source of water supply which came from the mountains lying to the north and east of the city. The mother brought a wrongful death action against the city after her minor son was killed while playing in a conduit owned and maintained by the city. The death of her son was alleged to have been caused through the negligence of the city in failing to guard the entrance into the waterway or conduit. The district court entered judgment for the mother. The lower court denied the city's request for a directed verdict.
Did the lower court err in denying the city's request for a directed verdict?
The court affirmed the lower court's decision and held that the lower court did not err in refusing to direct a verdict in favor of the city. The court determined that the mother was not required to bring the claim to the city council before proceeding to a court because the claim presentation statute was not constructed to include wrongful death claims. The court found that the city voluntarily constructed the waterworks in order to derive revenue; therefore, it was not immune from suit because it was not acting in its governmental capacity. The court concluded that the jury was properly instructed as to the attractive nuisance doctrine and that the jury did not err in finding for the mother. The court stated that the question of contributory negligence was a question of fact for the jury.