12 N.E. 451 (Ohio 1887), Harriman v. Pittsburgh, C. & St. L. R. Co.
| Docket Number | . |
| Citation | 12 N.E. 451,45 Ohio St. 11 |
| Date | 22 March 1887 |
| Parties | HARRIMAN v. PITTSBURGH, C. & ST. L. R. CO. |
| Court | Ohio Supreme Court |
Page 451
Page 452
Error to district court, Preble county.
Harriman, an infant, by his next friend, brought his action in the court of common pleas against the Pittsburgh, Cincinnati & St. Louis Railway Company to recover damages for personal injuries, which he claims were caused by its negligence. A demurrer to his petition was sustained by that court, and by leave of the court he filed his amended petition. A demurrer to this was likewise sustained; and, not desiring to further amend, final judgment was rendered against him. This judgment was affirmed by the district court, and the plaintiff now seeks the reversal of those judgments.
As the amended petition embodies all the facts stated in the original petition, together with some additional ones, the only material question presented on the record arises upon the demurrer to the amended petition, which is as follows:
‘ The plaintiff says that he is an infant under the age of twenty-one years, and brings this action by his father, Charles L. Harriman, his next friend. That the defendant is a corporation, duly organized under the laws of the state of Ohio, and, on or about the twenty-fifth day of July, 1880, owned, leased, and operated a certain railroad known as the Pittsburgh, Cincinnati & St. Louis Railroad, with the track, cars, locomotives, and other appurtenances thereto belonging, and which said railroad runs through said county of Preble. That defendant, in using and operating its said road and trains of cars thereon, among other things, carried on its said trains, to be used by defendant's servants in the management and operation of defendant's road and trains, certain contrivances called and known among railroad men and employes as ‘ signal torpedoes; ’ that said contrivances or torpedoes are hermetically closed circular metal boxes, about two inches in diameter and about one-half inch in depth, filled with a powerful explosive substance, of the name of which the plaintiff is ignorant, and are unusual and uncommon things, whose uses and dangerous composition were and are known to but few persons, and cannot be used without great peril to all persons, being so constructed that a slight blow administered, through handling or otherwise, will cause them to explode with great force and danger to human life; that the danger, however, is so concealed as not to be apparent, and that an ordinarily careful person would not only not believe from their appearance that they were dangerous, but that they were simply harmless boxes,-all of which the defendant well knew.
‘ But that, notwithstanding said knowledge, said defendant, on or about said twenty-fifth day of July, 1880, while it was operating its said road, and was running a train of cars thereon, and had caused said train to stop at a water-tank and station situate on its said road, in a thickly inhabited portion of said county of Preble, by its servants, who were then engaged in the management, operation, and control of said train, took from the place upon said train where the same were carried several of said torpedoes; and, while so in the control and management of said train, wantonly placed said torpedoes upon the track of its said road, in an exposed place, where, if left undestroyed and unguarded, they would be likely to cause injury to others. That there was no reason for making use of said torpedoes at said time or place, nor was there any necessity of giving danger signals; but the same were used as aforesaid, in mere wantonness, and with a view that said train, on being moved forward, would pass over and explode the same.
‘ The said defendant so using said torpedoes as aforesaid, and in the manner aforesaid, so carelessly and negligently conducted itself in the management and care of its said road, and management of its said train, that it negligently and carelessly failed to explode and destroy all of said torpedoes so placed on its said track as aforesaid, and negligently and carelessly left upon its said road, exposed and unexploded, and in plain view, one of said torpedoes, at a point and place upon its said road over which the inhabitants living along the line of said road, and other persons, were for years daily accustomed to travel and pass, and over which children were accustomed to go without hindrance, and all with the full knowledge of said defendant, and that said defendant negligently, carelessly, and in willful disregard of the safety of those whom the defendant well knew were in the daily habit of using said road as a pathway, permitted said unexploded torpedo to remain upon its said road, undestroyed and unguarded from the reach and observation of all passers-by.
‘ That plaintiff, who was then about ten years of age, was, at the time said defendant stopped its train at said water-tank and station, standing near said tank and station, in company with several other boys of about his age. That, immediately after said train had moved on, a small boy, aged about nine years, named Brown, who, with the knowledge of the defendant, was coming west on its said road, and immediately behind its said train, passed over the place on said road where said torpedo was so placed and so left as aforesaid, and discovered the same, and, having no knowledge of its uses and dangerous character, appearing to be but a simple box, picked up the same, and carried it about 150 feet, to where this plaintiff and his said companions were standing as aforesaid, and exhibited the same to them; that neither this plaintiff nor any of those with him had any knowledge or information, obtained from examination or otherwise, of the dangerous character and composition of the thing so exhibited, nor of its uses, nor of the great peril and danger they incurred in handling the same, nor was there anything in its construction or appearance which would have induced an ordinarily prudent man to believe that there was danger in handling the same, or that it was anything else than what it appeared to be,-a mere harmless box.
‘ That, while in total ignorance of the danger and peril as aforesaid, and while standing near where found, attempting to open said torpedo for the purpose of learning what the same contained, and without fault of the plaintiff, said torpedo exploded with great violence, scattering the fragments thereof in all directions, killing one Adam R. Cresler, destroying an eye each for W. D. and S.W. L. Shields, and severely wounding this plaintiff in the body, legs, head, and face, and so mangling and tearing his left hand and arm that the same had to be amputated above the wrist; that the injuries so caused and sustained by the plaintiff, as aforesaid, caused him to be confined to his bed for a period of ten weeks, to suffer intense pain, to incur great expense for medical aid and attendance in the sum of $80, and to undergo many painful surgical operations; that, by reason of said injuries he so as aforesaid sustained, he will be forever disfigured and injured about the head, face, and body, and forever disabled by the loss of his said left hand. Wherefore he says he has sustained damages, by reason of said injuries so caused by the defendant as aforesaid, in the sum of $15,000, and for which sum he prays judgment.’
Where a railroad company has for a long time permitted the public, including children, to travel and pass habitually over its road at a given point, without objection or hindrance, it should, in the operation of its trains and management of its road, so long as it acquiesces in such use, be held to anticipate the continuance thereof; and it is bound to exercise care accordingly, proportioned to the probable danger to persons so using its road.
Page 453
[45 Ohio St. 15]
[45 Ohio St. 19]
In support of the demurrer to the amended petition, and the action of the courts below in sustaining the same, it is urged (1) that the defendant owed no duty, either to the plaintiff or the boy Brown, (who picked up the torpedo,) and was under no obligation to them to keep its road in a safe or suitable condition for their use; (2) that the alleged negligence of defendant's servants was not the proximate cause of the plaintiff's injury, but that the same was caused by the wrongful act of Brown; and (3) that the defendant's servants, in placing the torpedoes on its track and leaving one there, were not engaged in the performance of any duty devolving upon them under their employment, nor in the furtherance of the defendant's business.
1. The first ground for the claim of the defendant that the demurrer was properly sustained, more definitely stated, is that between stations and public crossings the defendant [45 Ohio St. 20] has the same exclusive ownership, possession, and control of its tracks and rights of way as any other owner of property; and persons going upon the same without permission are trespassers; and those who go upon them by mere license do so subject to all the risks incident to so hazardous an undertaking; and in neither case is any obligation or duty imposed by law upon the defendant to provide against the danger of accidents to them; nor is it liable for injuries resulting from the unsafe or dangerous condition of its roadway; that, at best, the boy Brown, when he picked up the torpedo, was on the defendant's roadway by mere permission, and took upon himself all the dangers and risks of his act, and the plaintiff is in no better or different position.
Actionable negligence is sometimes defined to be ‘ the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff, without contributory negligence on his part, has suffered an injury to his person or property.’...
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