Bonhomie & H. S. Ry. Co. v. Hinton

• Decision Date: 28 October 1929
• Docket Number: 28067
• Citation: 155 Miss. 173,124 So. 271
• Parties: BONHOMIE & H. S. RY. CO. v. HINTON et al
• Court: Mississippi Supreme Court

124 So. 271

155 Miss. 173

BONHOMIE & H. S. RY. CO. v. HINTON et al

No. 28067

Supreme Court of Mississippi

October 28, 1929

Division B

1 NEGLIGENCE. Attractive nuisance doctrine does not apply unless condition was something unusual, and of nature rendering it unusually attractive to children.

Doctrine of attractive nuisance does not apply, unless condition or appliance is something unusual, and of nature rendering it peculiarly or unusually attractive or alluring to children.

2 NEGLIGENCE. Attractive nuisance doctrine did not apply, where door in railroad depot house fell off rollers and injured child.

Where railroad company used small house as depot, at which there was no agent, an one of the children accustomed to playing around the depot house engaged in sliding door back and forth on rollers, and door fell, injuring child, recovery could not be had on theory that depot house and door therein was an attractive nuisance.

HON. E. C. BARLOW, Special Judge.

APPEAL from circuit court of Perry county, HON. E. C. BARLOW, Special Judge.

Action by Ira J. Hinton and others against the Bonhomie & Hattiesburg Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and rendered.

Reversed.

John R. Tally and Paul B. Johnson, both of Hattiesburg, for appellant.

A railroad depot is not a place which allures children of tender years, or holds out to them an implied invitation or special attraction to visit it; and a railroad company is therefore not under any duty of active vigilance toward a child, who goes upon the platform without the company's knowledge and is injured.

Ling v. Great Northern Railroad Co., 165 F. 813; Croom v. Kentucky Electric Railway Co., L.R.A. 1915D, page 160; Harris v. Cowles, 107 Am. St. Rep. 847; Nichols v. Bell Tel. Co., 109 A. 649; 20 R. C. L., sec. 29, p. 89.

The defendant should have had a peremptory instruction, because there was no evidence to show that it had knowledge that the plaintiff, or other children, were using the depot and that there was a dangerous instrumentality in said depot, calculated to injure children.

Fitzmaurice v. Railroad Co., 3 L. R.A. (N.S.) 149; Hart v. Mason City Brick Co., 38 L.R.A. (N.S.) 1173; Mayfield Water Co. v. Webb, 18 L.R.A. (N.S.) 179; Witte v. Stifel, 47 A. S. R. 668; Walsh v. Fitchburg R. Co., 45 A. S. R. 615, 27 L.R.A. 724; Whelling, etc., R. Co. v. Harvey, 19 L.R.A. (N.S.) 1136; Uthermohlen v. Bogg's Run Co., 56 L.R.A. 911; Hardy v. M. P. Railroad Co., 36 A.L.R. 1; U. S. Zink Chem. Co. v. Britt, 258 U.S. 268, 42 S.Ct. 299; Carr v. Oregon Wash. R. & Nav. Co., 60 A.L.R. 1434; Buchanan v. Chicago, R. I., etc., R. Co., 119 So. 703, 20 R. C. L., sec. 73, page 83.

Knowledge is absolutely essential to recovery.

90 Pa. S.Ct. 151; Salter v. Deweese-Gamble Lbr. Co., 102 So. 268.

The defendant owed the plaintiff no duty except to abstain from wilfully or wantonly injuring him.

Berkes v. Y. M. & V. R. Co., 121 So. 120; Richmond & D. R. Co. v. Burnsed, 70 Miss. 437; Bellingsley v. Illinois C. R. Co., 100 Miss. 623; Louisville, etc., R. Co. v. Williams, 69 Miss. 161; 33 Cyc., pages 769 to 772; 3 Elliott on Corporation (2 Ed.), par. 1223; Byers v. Davis, 131 Miss. 1; Fuller v. Railroad Co., 100 Miss. 705; Y. & M. V. Railroad Co. v. Smith, 111 Miss. 471; I. C. R. R. Co. v. Lucas, 89 Miss. 411, 42 So. 607; Rathbone v. Oregon R. Co., 40 Ore. 225, 66 P. 909, 11 Am. Neg. Rep. 138.

One who uses the track or right of way for his own convenience or pleasure, without the permission or invitation of the company, occupies the position of a mere trespasser. The company is under no legal duty or obligation to take precautions or to keep a lookout for him, its only duty being to use reasonable care not to injure him after he is discovered.

Long v. P. R. & Nav. Co., 74 Ore. 502.

Morris & Wingo, of Hattiesburg, for appellees.

The owner of a place which is attractive to children unsuspecting danger, or so obviously dangerous to children that where the use of it by children is discovered, it is negligence not to guard it.

Mackey v. Vicksburg, 64 Miss. 777, 2 So. 178; Sprengler v. Williams, 67 Miss. 1, 6 So. 613; Dampf. v. Y. & M. V. R. Co., 48 So. 612; Temple v. Electric Light Co., 89 Miss. 281, 42 So. 874; Thompson v. I. C. R. R. Co., 63 So. 185; Salter v. Deweesee-Gammill Lbr. Co., 102 So. 268.

The question of the attractiveness of a particular depot and its vicinity should be submitted to the jury upon the proper instructions of the court and it was unnecessary to show specific evidence that the company has noticed that children were using the depot as a playhouse.

Sprengler v. Williams, 67 Miss. 1, 6 So. 613.

Argued orally by Paul B. Johnson and John R. Tally, for appellant.

OPINION

Griffith, J.

At a flag station, called Wingate, on appellant's line of railway, there is a small house used and maintained by the railway as a depot. There is a room or compartment in this house which is used for the reception of freight. This compartment is opened and closed by a heavy door, which door is suspended by rollers to an overhead rail, or rails, so that the door is operated upon these rollers, rather than upon hinges. The door is not locked, there is no agent there, and in brief the depot house is used in the ordinary manner appertaining to flag stations.

Around and near this depot house, for several years past, children had been accustomed to play, and occasionally they would go into the said house. On the 17th day of May, 1928, Ira Hinton, Jr., a boy six years old, was playing around the said depot and in the said freight compartment. Finally he engaged in sliding the said door back and forth, with the result that in a manner not necessary here to detail the rollers came off the rail, and the door fell, injuring the child.

Suit was brought, and a judgment was obtained for the plaintiff on the theory that the said depot house and the door therein was an attractive nuisance from which judgment this appeal is prosecuted.

There has been much difference of opinion among the many reported cases throughout the several states on this question, and there are some cases that would sustain the judgment here in issue. But our view, and, as we think, the view that is taken by the later cases in this state, is expressed in the following quotation:

"While it is necessary to the applicability of the doctrine now under discussion that the instrumentality or condition involved in the particular case should be attractive to children as well as dangerous to them, a statement...