Daniels v. New York & N.E.R. Co.
| Decision Date | 03 September 1891 |
| Citation | 28 N.E. 283,154 Mass. 349 |
| Parties | DANIELS v. NEW YORK & N.E.R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Everett W. Burdett and Charles A. Snow, for plaintiff.
Charles A. Prince and R.D. Weston-Smith, for defendant.
The plaintiff does not contend that he had any express invitation from the defendant to enter upon its premises, but that he was enticed or allured by the attractiveness of the turn-table; and the proposition of law upon which he relies is that, if a railroad company leaves a turn-table unlocked or unguarded upon its own premises, near a public highway, or in an open or exposed position near the accustomed or probable place of resort of children, it is for the jury to determine, even in the absence of other evidence as to the attractive nature of the turn-table, whether it is, in and of itself, calculated to attract children, and whether a child injured upon it was in fact attracted or allured by it; that if so allured or attracted, the child comes upon the premises of the railroad company through its implied invitation or inducement, and is not a bare licensee or trespasser; and that the company owes to such child the duty to refrain from ordinary negligence with respect to the condition and management of its turn-table. The turn-table is stated in the exceptions to have been five or six hundred feet from a highway crossing the railroad, and six hundred feet from another highway crossing. Shortly before the accident the plaintiff and some other boys were at a station on the railroad, which appears by a plan used at the trial to have been about 1,000 feet from the turn-table; that they then asked some trainmen who were switching cars on the tracks adjacent to the turn-table to let them ride on the cars, and, on being refused, went to the turn-table. The only thing stated in the exceptions to show that the turn-table was attractive is that it had large upright standards or guys, 12 to 15 feet in height, which could be seen from a considerable distance.
The cases upon which the plaintiff relies may be divided into two classes. Those of the first class rest upon the proposition that, if a turn-table is of a dangerous nature and character when unlocked or unguarded, in a place much resorted to by the public, and where children are wont to go and play, it is the duty of the railroad company owning the turn-table to keep the same securely locked or fastened, so as to prevent it from being turned or played with by children, or to keep the same guarded. Stout v. Railroad Co., 2 Dill. 294; Railroad Co. v. Stout, 17 Wall. 657. The decision of the supreme court of the United States was apparently approved of in Railroad Co. v. Bailey, 11 Neb. 332, 9 N.W. 50, and followed in Railway Co. v. Simpson, 60 Tex. 103; Railway Co. v. Styron, 66 Tex. 421, 1 S.W.Rep. 161; Evansich v. Railway Co., 57 Tex. 123; Railway Co. v. McWhirter, 77 Tex. 356, 14 S.W.Rep. 26. See, also, Bridger v. Railroad Co., 25 S.C. 24; Ferguson v. Railway Co., 75 Ga. 637, 77 Ga. 102. The second class of cases proceeds upon the doctrine of constructive invitation; that is, that, if a person is allured or tempted by some act of a railroad company to enter upon its land, he is not a trespasser; and it is held that leaving a turn-table unguarded is such an act. Keffe v. Railway Co., 21 Minn. 207; O'Malley v. Railway Co., 43 Minn. 289, 45 N.W. 440; Railway Co. v. Fitzsimmons, 22 Kan. 686; Nagel v. Railway Co., 75 Mo. 653. The decision of the supreme court of the United States in Railroad Co. v. Stout rests upon the proposition stated by Mr. Justice HUNT, "that, while a railway company is not bound to the same degree of care in regard to mere strangers who are unlawfully upon its premises that it owes to passengers conveyed by it, it is not exempt from responsibility to such strangers for injuries arising from its negligence or from its tortious acts." The cases cited in support of this proposition are Lynch v. Nurdin, 1 Q.B. 29; Birge v. Gardner, 19 Conn. 507; Daley v. Railroad Co., 26 Conn. 591, and Bird v. Holbrook, 4 Bing. 628. With the exception of Daley v. Railroad Co., all of these cases come within other rules, or within well-defined exceptions to the general rule that a land-owner owes no duty to a trespasser, except he must not wantonly or intentionally injure him or expose him to injury. Lynch v. Nurdin, ubi supra, rests upon the doctrine that, if a person unlawfully places an obstruction in a way, he is liable to a child who is injured thereby, although the child wrongfully meddles with the obstruction. The contrary, however, was held in Hughes v. Macfie, 2 Hurl. & C. 744, and in Mangan v. Atterton, L.R. 1 Exch. 239. In Lane v. Atlantic Works, 111 Mass. 136, the plaintiff was found to be without fault, and not a trespasser. See, also, Clark v. Chambers, 3 Q.B.Div. 327; Powell v. Deveney, 3 Cush. 300. Birge v. Gardner, ubi supra, rests upon the doctrine that an owner of land has no right to use his land near a highway in such a manner as to make it a public nuisance. To the same effect is Hydraulic Works Co. v. Orr, 83 Pa.St. 332. Bird v. Holbrook, ubi supra, decides that a land-owner cannot lawfully, without giving notice, set traps upon his own land for the purpose of injuring trespassers; and that, if a person is injured by such a trap, he may recover. And in Connecticut the rule is held to be the same, though no notice is given. Johnson v. Patterson, 14 Conn. 1. This, as pointed out by MORTON, J., in Marble v. Ross, 124 Mass. 44, 49, proceeds upon the ground that the owner of land cannot wantonly injure a trespasser. The case of a trespasser injured by a vicious animal stands upon the same footing. Marble v. Ross, ubi supra. The owner of land adjoining a public street is undoubtedly liable for an excavation made by him therein, if the land, with his consent, has for a long time been used by the public as a street. Larue v. Hotel Co., 116 Mass. 67; Beck v. Carter, 68 N.Y. 283. The case of Daley v. Railroad Co., ubi supra, so far as it tends to support the result reached in Railroad Co. v. Stout, ubi supra, must be considered as overruled by Nolan v. Railroad Co., 53 Conn. 461, 4 Atl.Rep. 106.
The court of appeals of New York has stated, in a well-considered case, that it does not uphold the decision in Railroad Co. v. Stout, ubi supra, and, although it seeks to distinguish that case from the one before it, the difference between the two cases is not very apparent. McAlpin v. Powell, 70 N.Y. 126. In this case the plaintiff's intestate, a boy in his tenth year, stepped out of a window of the house in which he lived upon the platform of a fire-escape, and fell through a trap-door therein, which was insecurely fastened. The defendant was the landlord of the house, and it was his duty to keep the fire-escape in order. It was held that he owed no duty to one who was using the fire-escape for his own pleasure, and that the defendant was not liable. In Frost v. Railroad Co., 64 N.H. 220, 9 Atl.Rep. 790, the plaintiff, a boy seven years of age, was injured while playing upon a turn-table of the defendant's railroad. The ground upon which he sought to recover was that he was attracted to the turn-table by the noise of boys playing upon it. The turn-table was on the defendant's land about 60 feet from a public street, in a cut with high, steep embankments on each side, and was insecurely fastened. It was held that the plaintiff was but a trespasser; and that, under the circumstances, the defendant owed him no duty. The court expressly refused to follow the case of Railroad Co. v. Stout, ubi supra. On the question whether the defendant was liable on the ground of an implied invitation, CLARK, J., in delivering the opinion of the court, said:
Subject to the exceptions we have before stated, and to some others...
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