Grant v. Mueller

FOX, P. J.

This is an action for damages for personal injuries. A jury trial resulted in a verdict and judgment in favor of defendant. Plaintiff’s

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motion for a new trial was granted on grounds other than the insufficiency of the

[806]

evidence to justify the verdict. Defendant has appealed from the order granting a new trial.

Late in the afternoon of September 22, 1954, plaintiff, who was then 12 years of age, rode his bicycle into and upon the school grounds of the First Lutheran Church, located a short distance from his home. He was accompanied by two other boys on bicycles. They proceeded on their bicycles to a drinking fountain on the north end of the grounds. One of the boys left almost immediately. Plaintiff testified that he and the other boy rode their bicycles in an elongated circle for a period of from 5 to 15 minutes in the area between the school and the church. He further testified that he had ridden his bicycle on these grounds between 20 and 40 times and had never been admonished, by teachers or others connected with the school, not to ride his bicycle on the premises. Although there was testimony as to the presence of a no trespassing sign at the entrance to the grounds, plaintiff was not aware of any such sign.

On the evening in question defendant had driven to the sehoolgrounds to pick up his daughter, who was there attending a girl scout meeting. Defendant had been a member of the church for 10 years, and his daughter attended the school that it maintained in connection therewith. Upon driving onto the premises, defendant parked his car at the parking lot for 15 or 20 minutes before his daughter was ready. Upon his daughter’s entering the car, defendant proceeded to leave the grounds. In so doing, he came abreast of a pickup truck parked in the area. Plaintiff emerged on his bicycle from behind the truck and was struck by defendant’s ear, which dragged him approximately a car’s length. It is for the injuries thus sustained that plaintiff brought this action.

Defendant knew that these church and school grounds were frequented by children and that they often rode their bicycles over the area. He had on many occasions warned children about riding their bicycles there, estimating that he had given such warnings between 20 and 30 times. On the afternoon in question defendant observed parked bicycles nearby. He also saw children using the playground equipment.