Bogdon v. Los Angeles & S.L.R. Co.

• Decision Date: 20 February 1922
• Docket Number: 3683
• Citation: 205 P. 571,59 Utah 505
• Parties: BOGDON v. LOS ANGELES & S. L. R. CO
• Court: Utah Supreme Court

205 P. 571

59 Utah 505

BOGDON v. LOS ANGELES & S. L. R. CO

No. 3683

Supreme Court of Utah

February 20, 1922

Appeal from District Court, Third District, Salt Lake County; J Louis Brown, Judge.

Action by Dan Bogdon, a minor, by his guardian ad litem, John Bogdon, against the Los Angeles & Salt Lake Railroad Company. Judgment for the plaintiff, and defendant appeals.

REVERSED.

R. B Porter, of Salt Lake City (Geo. H. Smith, Jno. v. Lyle, and Dana T. Smith, all of Salt Lake City, of counsel), for appellant.

Willard Hanson, of Salt Lake City, for respondent.

FRICK J. CORFMAN, C. J., and THURMAN, J., GIDEON, J., WEBER, J., concurring.

OPINION

FRICK, J.

Dan Bogdon, a minor, by his guardian ad litem, brought this action to recover damages for personal injuries which he alleges he sustained through the negligence of the defendant. In view that there is no question raised respecting the sufficiency of the complaint, it is unnecessary to set forth the allegations therein contained, except to state that the plaintiff relies upon the doctrine of attractive nuisances and further relies upon the law applicable to the storing of dangerous explosives upon the owner's premises at such a place or places where children of immature judgment are permitted to go to play. It is likewise sufficient to say that the answer denies all the alleged acts of negligence. It will be sufficient to state the controlling facts as they are made to appear from the undisputed evidence as the same appears in the bill of exceptions. Those facts, in substance, are:

That in July, 1917, the Hercules Powder Company, located at Bacchus, Utah, shipped to its agent, the Tintic Powder & Supply Company, as consignee, to Eureka, Utah, a car of explosives, including therein "100 kegs of 4-F black blasting powder"; that the powder was shipped in metal kegs containing 25 pounds each; that while the shipment originated on the line of another railroad, it, nevertheless, was transported over defendant's railroad, and reached its destination, Eureka, which is on defendant's railroad; that the powder was shipped in U. P. car No. 77451, and said car arrived at Silver City, where the accident occurred, after the powder had been unloaded therefrom, at 10:30 a. m. on July 14, 1917; that the car was placed on the side track at Silver City, Utah, where it remained until about 4 p. m., or, perhaps, a little earlier than that, of that day, when it was taken to the Utah ore sampler at Silver City, where it was reloaded and "billed out" at about 6 p. m. of that day, and was, in the regular course of business, taken and transported over defendant's railroad on the following morning the 15th, at 10:30 o'clock; that some time in the afternoon of the 14th the plaintiff, a boy about eight years of age, in searching for four of his father's sheep, passed over defendant's tracks near its depot, and, in passing by the car in question, discovered something in the car, which he says, looked to him like powder, although he was then not certain what it was; that he went into the car, gathered up some of the substance he there found, and put it into what he called a "flap Jack box," and took and showed it to defendant's station agent, and asked him what it was; that defendant's agent told him he did not know what it was, and he then left the agent and placed a small quantity of the substance he had found in the car on some paper and lighted it with a match, which he had with him, when it flashed, and he then became convinced that it was powder; that he then took the powder he had in the box some distance away from the car and placed it into a hole and placed a heavy metal bucket over it and attempted to light it; and it did not take fire, so he went to the bucket to relight the powder, when his younger brother stirred the powder under the bucket with a stick and upset the bucket, at which time the powder suddenly flashed and set plaintiff's clothes on fire, which, before the fire could be put out, caused him to be very seriously burned, the effects of which are permanent and quite serious.

It was also made to appear from plaintiff's evidence that in shipping powder the kegs in which it was shipped would at times become injured, and powder would leak therefrom. There was no evidence, however, that such was the case with the shipment in question, or with any that had gone into the Tintic district, but all that was shown was that according to plaintiff's evidence there was a considerable quantity of powder left on the floor of the car. It was also shown on behalf of plaintiff that there was a schoolhouse near defendant's depot grounds and its switch tracks, and that there was a public street or highway which passed near the depot where the public, including children, and especially boys, frequently passed, and that the boys including plaintiff, had frequently played on its depot grounds and in and about the cars standing on the tracks. It also appeared from the plaintiff's evidence that at the time of the accident school was not in session, and that it was vacation time; that the plaintiff, on the occasion in question, did not go to defendant's depot grounds or tracks either in going to or coming from school; that he was not attracted by the car, and was not invited to go there by any one, but went there on his own initiative and for the purpose of searching for his father's sheep; that the presence of the powder was unknown to the plaintiff at any time, and its discovery was purely accidental. There was no evidence that either powder or any other explosive substance had ever been left or had been found in any of the defendant's cars before, although the evidence was that large quantities of explosives were shipped to Tintic district every month; the Tintic district then being, and for many years having been, a mining district. It also appeared, however, that only two shipments of black powder had ever been made into the district, one of which was the shipment in question. Nor was it made to appear that any accident of a similar nature, or of any character, had ever occurred before, or that any explosives of any kind had ever been found in defendant's cars or upon its grounds.

On behalf of defendant it was also shown that it was the duty of the consignee to unload the explosives and to take proper care of them after they had reached their destination; that none of defendant's employes had anything to do with the unloading of the car; that one of defendant's employes removed the placard from the car after the powder had been unloaded by the consignee, as he was required to do. There is no evidence, however, that any of defendant's employes knew that any powder was left in the car by the consignee, or that the powder was discovered in the car while the same was taken from Eureka, where it was unloaded to Silver City, where it was taken to be reloaded as before stated. It was also made to appear a matter not made clear by the plaintiff's evidence, that the car was unloaded some time on the 13th of July, the day before the accident.

While plaintiff's evidence with respect to the powder being left in the car was contradicted by defendant's witnesses, yet such contradictions are immaterial here, since plaintiff's evidence must control, except upon such matters as are not shown by plaintiff's evidence, and where defendant's evidence stands uncontradicted. We have therefore referred to defendant's evidence only where reference is made to matters not shown by the plaintiff, and where its evidence stands without conflict and without dispute.

After the plaintiff rested the defendant interposed a motion for nonsuit, the principal ground being that plaintiff had failed to prove that the defendant was guilty of any negligence. The motion was denied. The defendant then produced its evidence, and, after the evidence was all in, it moved the court to direct the jury to return a verdict in its favor, no cause of action, upon various grounds, but principally that the evidence was insufficient to sustain a finding of negligence on the part of defendant. The motion was denied, and the defendant duly excepted to the court's rulings in denying the motions.

It is now insisted that the ruling of the court in denying its motion for a directed verdict was erroneous for the reason that there is no evidence which would sustain a finding of negligence, and that therefore the motion should have been granted as a matter of course. Upon the other hand, counsel for plaintiff somewhat vigorously contend that the facts of this case bring it within what is known as the turntable doctrine, or the doctrine of attractive nuisances. They, however, further contend that if it be held that the case does not come within the foregoing doctrine, it, nevertheless, comes within the rule governing the storing of dangerous explosives, and that the defendant was guilty of negligence within that rule.

We shall first consider the doctrine of the so-called turntable cases, or what is otherwise known as the doctrine of attractive nuisances.

That question has been before this court three times. Brown v. Salt Lake City, 33 Utah 222, 93 P. 570, 14 L.R.A. (N.S.) 619, 126 Am. St. Rep. 828, 14 Ann. Cas. 1004; Smalley v. Railroad, 34 Utah 423, 98 P. 311, and Charvoz v. Salt Lake City, 42 Utah 455, 131 P. 901, 45 L.R.A. (N.S.) 652.

In the case first cited we, with some hesitation, held that it came within the doctrine of the turntable cases, or, rather within that of attractive nuisances. From the facts in that case it is clear that the city for a long period of time (more than 18 months) had knowingly, and against the protests of the parents, whose children were attracted by and exposed to the dangerous condition of a certain conduit...