Twist v. Winona & St. Peter Railroad Company
| Decision Date | 30 August 1888 |
| Citation | 39 N.W. 402,39 Minn. 164 |
| Parties | Frank Twist v. Winona & St. Peter Railroad Company |
| Court | Minnesota Supreme Court |
Plaintiff brought this action in the district court for Nicollet county, (under Gen. St. 1878, c. 66, § 34,) to recover damages for injuries sustained by his minor child Verne Twist, while upon a turn-table of the defendant. The complaint charges defendant with negligence in not locking or guarding the turn-table. At the trial, before Webber, J., the jury found a general verdict of $ 5,000 for plaintiff, and made the special findings recited in the opinion. The defendant moved for a new trial on the grounds () that it was entitled to judgment in its favor on the special findings; that the special and general verdicts were inconsistent, and that the general verdict and the third special finding were not justified by the evidence. The notice of motion also stated that defendant would move "for such other or further relief in the premises as may be just." At the hearing of the motion the defendant asked judgment in its favor on the special findings, or should that be denied, for a new trial. The motion was denied, and the defendant appealed.
The cause is remanded, with directions to the district court to enter judgment for defendant.
Wilson & Bowers, for appellant.
Lusk & Bunn, for respondent.
This action was brought to recover damages for personal injuries sustained by plaintiff's son while playing on one of defendant's turn-tables. The table was situated upon defendant's own premises, in the suburbs of St. Peter some five or six hundred feet from the depot. The premises were uninclosed, but the table was not so near any highway or street as to interfere with the safety or convenience of public travel. It was what is called a "skeleton" turn-table, of the kind in general use by railways except in round-houses. In accordance with the general usage, it was not locked, but was supplied with latches of the usual kind to keep it in place when in use. These latches weighed four or five pounds each, but could be lifted out of their sockets, and the table set in motion, by comparatively small children. Boys had been frequently in the habit of setting the table in motion, and playing on it, and during the 15 or 20 years it had been there three boys had been injured by it, all of which facts were known to the defendant. The agents of the railway company had frequently forbidden children from playing on the table, and were in the habit of driving them away when they saw them doing so. It does not appear but that some way might be devised of keeping such turn-tables locked when not in use, but the evidence does show that no such contrivance has yet been devised, and that the general custom is to leave them unlocked and merely held in place by latches, as this one was. Plaintiff's son, a boy of the age of 10 years and 4 months, went, in company with several other boys, into the vicinity of the table, and, after the others had set the table in motion, he also joined in swinging on it, and sustained the injuries complained of, in the usual way, by his foot being caught between the arms of the table and the stationary abutments. The negligence charged against the defendant is in not locking the table, so that it could not be set in motion by children.
The rule invoked by plaintiff is that laid down by this court in Keffe v. Milwaukee & St. Paul Ry. Co., 21 Minn. 207, and by the supreme court of the United States in what may be termed the pioneer "turn-table case," (Railroad Co. v. Stout, 84 U.S. 657, 17 Wall. 657, 21 L.Ed. 745,) in which it is held that the owner of dangerous machinery, who leaves it in an open place though on his own land, where he has reason to believe that young children will be attracted to play with it, and be injured, is bound to use reasonable care to protect such children from the danger to which they are thus exposed. The line of argument adopted in the "Keffe Case," in support of this rule, is that such machinery, being attractive to young children, presents to them a strong temptation to play with it, and thus allures them into a danger whose nature and extent they, being without judgment and discretion, can neither apprehend nor appreciate, and against which they cannot protect themselves; that such children may be said to be induced by the owner's own conduct to come upon the premises; that what an express invitation is to an adult, an attractive plaything is to a child of tender years; that as to them such machinery is a hidden danger, -- a trap. Much of the briefs of counsel, especially of that of defendant, is devoted to the consideration of the doctrine of these so-called "turn-table" cases, and of the question of the duty, if any, which the owner of dangerous machinery or other articles situate on his own premises owes to intermeddling or trespassing children. The doctrine of these cases has been questioned by some courts, and repudiated by others, who hold that a land-owner is not bound to take active measures to insure the safety of intruders, even children, nor is he liable for any injury resulting from the lawful use of his premises to one entering without right; that to intruders or trespassers the land-owner owes no duty; and where there is no duty to perform there can be no negligence. Frost v. Eastern R. Co., (N. H.) 64 N.H. 220, 9 A. 790. Applied to one of sufficient mental capacity to be a conscious trespasser, this is undoubtedly a sound rule; but if applied to children of tender years, strictly non sui juris, it would seem harsh and inhuman. Properly qualified and limited in its application, the doctrine of the Keffe Case is, in our judgment, in accordance with both reason and the dictates of humanity. But some of the cases have undoubtedly gone too far. By adopting an extreme or extraordinary standard of duty on the part of the land-owner on the one side, and on the other side by attributing the conduct of all children to their childish instincts so as to exempt them from the charge of contributory negligence, regardless of age or mental capacity, it is obvious that the rule of the Keffe and similar cases is capable of indefinite and unbounded applicability. To the irrepressible spirit of curiosity and intermeddling of the average boy there is no limit to the objects which can be made attractive playthings. In the exercise of his youthful ingenuity, he can make a plaything out of almost anything, and then so use it as to expose himself to danger. If all this is to be charged to natural childish instincts, and the owners of property are to be required to anticipate and guard against it, the result would be that it would be unsafe for a man to own property, and the duty of the protection of children would be charged upon every member of the community except the...
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