Page:North Dakota Reports (vol. 48).pdf/750

 to the tops of posts or poles more than 12 feet in height with heavy wooden iron-bound or iron-mounted planks, each suspended by heavy iron chains attached to said poles or timbers, which swings, when in operațion, from east to west and from west to east, were wholly unguarded or superintended by any teacher or any adult person, and were unprotected by any fence or barrier whatsoever, and without any mattress or netting thereunder; that the chutes and swings were not a part of the original plan, of the public school building or public school playground, and were foreign to the original plan provided for, accepted, and used in building said public schoolhouse and running of said public resort at said public school playgrounds; that said chutes and swings were, by the neglect or by the positive act and permission of the defendant, through its officers, agents, and servants located and constructed, or permitted to be constructed, and for several weeks to remain, so as to constitute an eminently dangerous, constant, continuous, and, as to children, an attractive, enticing, inexcusible, and alluring, public nuisance, which said danger was patent and obviously apparent to any adult person of ordinary intelligence and caution; that defendant, by and through its officers, agents, and servants, did by locating, erecting, and maintaining, and by permitting such apparatus to be located, erected, and maintained did perform and suffer to be performed a wilful malfeasance and did so wilfully, carelessly, and negligently permit said chutes and swings to remain on said public resort and public school playgrounds for several weeks without any supervisors, and without taking precaution to protect children lawfully on the grounds from being injured and killed thereby; that on the 1st day of December, 1920, one John William Anderson, age 13 years and 3 months, in good and robust health, and while lawfully on said public playground, and under legal compulsion to attend that school, and while in the vicinity of the chutes and swings with other children, innocently yielded to the instincts of childhood and was sliding, running, and playing on or about such apparatus, as more than 500 other children were wont and likely to do, was struck in the head and neck by one of the heavy iron-bound or iron-mounted plank swing seats, and mortally wounded thereby, and within a few minutes thereafter, without regaining consciousness, languished and died, as the direct and immediate result of having been so struck, and this without the fault and negligence of the plaintiff or the deceased, considering his age and the surroundings, but was wholly caused by the presence on the public school