Barnhill's Adm'r v. Mt. Morgan Coal Co.

• Decision Date: 13 May 1910
• Citation: 215 F. 608
• Parties: BARNHILL'S ADM'R v. MT. MORGAN COAL CO.
• Court: U.S. District Court — Eastern District of Kentucky

215 F. 608

BARNHILL'S ADM'R v. MT. MORGAN COAL CO.

United States District Court, E.D. Kentucky.

May 13, 1910

R. S Rose, of Williamsburg, Ky., for plaintiff.

J. N Sharp, of Williamsburg, Ky., for defendant.

COCHRAN District Judge (charging jury):

I have considered the decisions that have been offered on both sides, and the suggestions that have been made, and I have a clear conviction as to the law of this case and as to my duty in reference to it, and I will try to make plain my conception of the law. I will deal with it, first, on the basis that the defendant took no precaution to prevent the operation of the empty coal cars, and then allude to that feature of the case.

This case is based on what is known as the 'Turntable Doctrine.' To deal with a case claimed to be based on any such ground as this, one should have an accurate knowledge of just what the turntable doctrine is. That doctrine is, as I understand it, that if one has on his premises something that is dangerous to children, i.e., of such character that it is likely that children themselves can create danger out of it and it is attractive, or alluring, or enticing to children, he owes the duty, as a matter of common humanity, to protect that thing and guard it from danger to children. Now, I said 'to children.' That is too broad. The doctrine is not that broad. It is to children of tender age. It is essential that the dangerous condition, whatever it may be, on one's premises, should be a danger to children of tender age. There is no doctrine here in the law that if a man has on his premises that which can be made dangerous by grown men, or children who are not of tender age, which may thus be made attractive to such children, so that they may be hurt or injured thereby, the owner of the premises must guard that from being interfered with. It is absolutely essential that the thing which it is claimed should be guarded against operation or handling in any way should be something that can be handled by children of tender age and made dangerous by them. And so it is that we find all of these cases based on the turntable doctrine that have been cited are cases where the children were of tender age.

Take the Stout Case (Sioux City v. Stout, 17 Wall. 657, 21 L.Ed. 745), for instance. The child there was 6 years of age, and of the two boys that went with him, one was 9 and the other 10 and these three young boys could operate that turntable by themselves, and could create a danger there.

Then take the case of Illinois Central R.R. v. Wilson, 63 S.W. 608, 23 Ky.Law Rep. 684, a hand car case, where the railway company left the hand car out on the macadam, and some small boys came along and used it, and one of the little boys got hurt, and it was held that the railway company ought to have guarded and protected that hand car. There the boy was nine years of age.

And so in the Hicks Case (U.S. Natural Gas Co. v. Hicks, 134 Ky. 12, 119 S.W. 166, 23 L.R.A. (N.S.) 249, 135 Am.St.Rep. 407), where a natural gas company up here in Eastern Kentucky had some defect in its pipe line, by which a little boy got hurt. At the time of his injury, appellee was about 8 years of age, and he was with a brother about 4 years old and a neighbor's boy about 7 years of age.

Then this later case that went up from Pike county against the Chesapeake & Ohio Railway (Brown v. C. & O. Ry. Co., 135 Ky. 798, 123 S.W. 298, 25 L.R.A. (N.S.) 717), which was a turntable case.

The boy that was hurt was 12 years of age. There the, which was a turntable case. petition alleged:

'That said draw bolt was an insecure fastening, and said draw bolt could easily be removed and slipped to either side by a child 7 or 8 years old, so that said turntable would revolve, and small children had previous to the time of the injuries complained of been in the habit of removing said draw bolt and using said turntable as a merry-go-round, and said turntable was very attractive to children,' and so on.

Now these are all of the cases that the plaintiff cites, and they are all cases involving children of tender years. Only one of them was a child over 10 years of age, and that is the last one, and the thing complained of was a thing that it was alleged could be made dangerous by a child 7 or 8 years of age.

Then there is the New Jersey case, in 169 F. (Snare v. Friedman, 169 F. 1, 94 C.C.A. 369, 40 L.R.A. (N.S.) 1367), where the little fellow fell in a canal, or something of that sort, I think-- no, this was some obstruction in the street, and hardly comes within the doctrine. There the little fellow was 4 1/2 years of age is my recollection.

On the other side, the cases cited were all of children of tender age.

This, then, is the doctrine: That if a man has on his premises something that can be operated by a child of tender years, and made dangerous by him, and which is alluring to him, attractive to him, and calculated to induce him to use it, that man who has that thing on his premises owes it to the child, as a matter of common humanity, to protect that thing so that a child of tender age cannot be hurt by it. That is called the 'Turntable Doctrine,' and this case is attempted to be brought within it. The question is, Does it come within that doctrine?

Here were a lot of...