Keffe v. Milwaukee &Amp; St. Paul Railway Company

• Decision Date: 11 January 1875
• Citation: 21 Minn. 207
• Parties: Patrick Keffe, an Infant, by his Guardian, v. Milwaukee & St. Paul Railway Company
• Court: Minnesota Supreme Court

21 Minn. 207

Patrick Keffe, an Infant, by his Guardian, v. Milwaukee & St. Paul Railway Company

Supreme Court of Minnesota

January 11, 1875

The plaintiff, an infant, brought this action in the court of common pleas for Ramsey county to recover damages for injuries sustained while playing upon a turn-table of defendant. The circumstances under which plaintiff was injured are thus stated in the complaint: "That in connection with said railroad" (of defendant) "defendant, before and up to the month of October, 1867 used and operated a certain turn-table, located on the lands of said defendant in said town of Northfield, which said turn-table was so constructed and arranged as to be easily turned around and made to revolve in a horizontal direction."

After minutely describing the turn-table, the complaint proceeds "That said turn-table was situated in a public place near to a passenger depot of the defendant, and within 120 feet from the residence and home of plaintiff. That said turn-table was unfastened and in no way protected, fenced guarded or enclosed, to prevent it from being turned around at the pleasure of small children, although the same could at all times be readily locked and securely fastened.

"That said turn-table * * was in the possession and under the control of defendant, and not necessary in operating said railroad, and it was the duty of said defendant to keep said turn-table fastened or in some way protected, so that children could not readily have access thereto and revolve the same. That the same was not so protected or fastened, and that said turn-table, when left unfastened, was very attractive to young children, and that while the same was being moved by children, and at all times when left unfastened, it was dangerous to persons upon or near it.

"That defendant had notice of all the aforesaid facts, before and at the time the injury herein named occurred to the plaintiff.

"That plaintiff, on September 11, 1867, was a child of tender years, without judgment or discretion, he being at that date seven years old, and that in consequence of the carelessness, negligence and improper conduct of said defendant, in not locking, enclosing, or otherwise fastening said turn-table, and by the negligence, carelessness and improper conduct of said defendant, its agents and servants, in allowing said turn-table to be and remain unfastened, insecure, and improperly put in motion, it was, at the date last aforesaid, revolved by other children, over whom the parents and guardians of plaintiff had no control, and without their knowledge, and, while being so revolved, the plaintiff, being on said turn-table, had his right leg caught near the knee, between the surface of said turn-table and said abutment or wall, and between the iron rail on said turn-table and the iron rail on said abutment or wall, and said leg was thereby so bruised, broken, mangled and fractured, as to render amputation necessary."

The complaint further alleges that the injury was caused by defendant's negligence, and without any fault or negligence on the part of the plaintiff, or his parents or guardians, etc.

The defendant having answered the complaint, and the action having been called for trial, the defendant moved for judgment on the pleadings. The motion was granted by Hall, J., and judgment entered accordingly, from which plaintiff appealed.

Judgment reversed.

Mead & Thompson, for appellant.

Bigelow, Flandrau & Clark, for respondent, relied on the opinion of Hall, J., and the cases therein cited. ^[1]

OPINION

Young, J.

In the elaborate opinion of the court below, which formed the basis of the argument for the defendant in this court, the case is treated as if the plaintiff was a mere trespasser, whose tender years and childish instincts were no excuse for the commission of the trespass, and who had no more right than any other trespasser to require the defendant to exercise care to protect him from receiving injury while upon its turn-table. But we are of opinion that, upon the facts stated in the complaint, the plaintiff occupied a very different position from that of a mere voluntary trespasser upon the defendant's property, and it is therefore unnecessary to consider whether the proposition advanced by the defendant's counsel, viz, that a land-owner owes no duty of care to trespassers, is not too broad a statement of a rule which is true in many instances.

To treat the plaintiff as a voluntary trespasser is to ignore the averments of the complaint, that the turn-table, which was situate in a public (by which we understand an open, frequented) place, was, when left unfastened, very attractive, and, when put in motion by them, was dangerous to young children, by whom it could be easily put in motion, and many of whom were in the habit of going upon it to play. The turn-table, being thus attractive, presented to the natural instincts of young children a strong temptation; and such children, following, as they must be expected to follow, those natural instincts, were thus allured into a danger whose nature and extent they, being without judgment or discretion, could neither apprehend nor appreciate, and against which they could not protect themselves. The difference between the plaintiff's position and that of a voluntary trespasser, capable of using care, consists in this, that the plaintiff was induced to come upon the defendant's turn-table by the defendant's own conduct, and that, as to him, the turntable was a hidden danger, a trap.

While it is held that a mere licensee "must take the permission with its concomitant conditions, it may be perils," (Hounsell v. Smith, 7 C. B. (N. S.) 731; Bolch v. Smith, 7 H. & N. 836,) yet even such licensee has a right to require that the owner of the land shall not knowingly and carelessly put concealed dangers in his way. Bolch v. Smith, per Channell and Wilde, B B.; Corby v. Hill 4 C. B. (N. S.) 556, per Willes, J.

And where one goes upon the land of another, not by mere license, but by invitation from the owner, the latter owes him a larger duty. "The general rule or principle applicable to this class of cases is that an owner or occupant is bound to keep his premises in a safe and suitable condition for those who come upon and pass over them, using due care, if he has held out any inducement, invitation or allurement, either express or implied, by which they have been led to enter thereon." Per Bigelow, C. J., in Sweeny v. Old Colony and Newport R. Co., 10 Allen 368, reviewing many cases. And see Indermann v. Dawes, L. R. 1 C. P. 274; L. R. 2 C. P. 311.

Now what an express invitation would be to an adult, the temptation of an attractive plaything is to a child of tender years. If the defendant had left this turn-table unfastened for the purpose of attracting young children to play upon it, knowing the danger into which it was thus alluring them, it certainly would be no defence to an action by the plaintiff, who had been attracted upon the turn-table and injured, to say...