Barnhart v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 15 January 1916
• Docket Number: 12866.
• Citation: 154 P. 441,89 Wash. 304
• Court: Washington Supreme Court
• Parties: BARNHART v. CHICAGO, M. & ST. P. RY. CO.

154 P. 441

89 Wash. 304

BARNHART v. CHICAGO, M. & ST. P. RY. CO.

No. 12866.

Supreme Court of Washington

January 15, 1916

Department 2. Appeal from Superior Court, Snohomish County; Ralph C Bell, Judge.

Action by Fred Barnhart against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff, and defendant appeals. Reversed, and cause remanded, with directions to dismiss.

Geo. W Korte, of Seattle, for appellant.

M. J McGuinness, of Snohomish, for respondent.

MAIN J.

The plaintiff brought this action for the purpose of recovering damages for the death of his son, a child eight years of age. The cause was tried to a jury. At the conclusion of all the evidence the defendant challenged the sufficiency thereof, and moved for a directed verdict. This motion was denied. The jury returned a verdict for the plaintiff in the sum of $650. Judgment being entered upon the verdict, the defendant appeals.

The facts briefly stated are: During the latter part of the year 1911, the appellant railway company was completing the construction of its branch line from Cedar Falls to Everett. This line passed through the city of Snohomish. Where the line passed through this city it was upon low lands adjacent to the Snohomish river, and a considerable embankment or fill was made upon which the rails and ties were laid. About 1,200 feet from the west boundary of the city the railroad grade met a hill which was to the north of the grade. The hill had an elevation of approximately 25 feet, upon the side of which grew brush or small trees. The meeting of the grade and the hill at this point left a depression between the two in which either surface water, or flood waters of the river, were impounded and created a pond. The pond was entirely upon the right of way of the railway company. On the bank or hill to the north there was an old picket fence through which there were a number of openings. Above this hill was what is known as Second avenue. Before the embankment was constructed the flood waters from the river would at times form a pond in the same vicinity as the pond in question, but a little further south, to which boys would resort for the purposes of play, as they did upon this pond. After the pond in question had been formed, the boys of the neighborhood were accustomed to gather for play, and had constructed a raft out of old railroad ties, or other timbers. The water in the pond was from 8 to 10 feet deep at the deepest point. In reaching the pond it was necessary for the boys to go upon and across the private property of the railway company. On February 3, 1912, the two sons of the respondent, respectively 8 and 6 years old, were upon the raft upon the pond, at play, when the older of the two fell into the water and was drowned. This action, as already indicated, was brought by his father.

It is claimed that the railway company was negligent in failing to drain the pond. The controlling question in the case is whether the owner of the property upon which a pond is formed, where the boys of the neighborhood resort for play, is guilty of negligence in failing, either to drain the pond, or fence his property against such intrusion. The general rule, of course, is that the private owner of land is not liable to strangers who come thereon without any invitation, express or implied, and receive an injury from some agency upon the premises.

An exception to this general rule is made by what is known as the doctrine of the turntable cases. According to this doctrine damages may be recovered from the owner for the death or injury of a child of tender years even though technically a trespasser, and who has been attracted to the place of the accident by a dangerous agency which is in the nature of an attractive nuisance. Railroad Co. v. Stout, 17 Wall. 657, 21 L.Ed. 745; Clark v. Northern P. Ry. Co., 29 Wash. 139, 69 P. 636, 59 L. R. A. 508; Union P. Ry. Co. v. McDonald, 152 U.S. 262, 14 S.Ct. 619, 38 L.Ed. 434. The turntable doctrine has been adopted by the courts of last resort in a considerable number of states, and rejected by almost an equal number. There is a tendency generally on the part of courts which have approved the doctrine to limit, rather than extend, its application. Harris v. Cowles, 38 Wash. 331, 80 P. 537, 107 Am. St. Rep. 847; Bottum's Adm'r v. Hawks, 84 Vt. 370, 79 A. 858, 35 L. R. A. (N. S.) 440, Ann. Cas. 1913A, 1025. In the case last cited will be found a review of the cases which support the statement as to the tendency to limit the doctrine.

The question here presented is not whether the owner of property may be liable: (a) By reason of a trap or pitfall upon his property which may produce the death or injury; (b) a hidden or concealed danger; or (c) a dangerous agency in close proximity, or so near a highway that in the use of the highway an accident may occur--but is whether a pond of water is a dangerous agency such as will subject the owner of the property to liability for damages for the death of a child of tender years, attracted to the pond for the purpose of play. The turntable doctrine makes the owner liable because the dangerous agency was attractive to children of tender years, and in playing about or with such agency accident or injury would probably result. That a pond of water is attractive to boys for the purposes of play swimming, and fishing no one will deny. But its being an attractive agency is not...