Carson v. Chicago, R.I. & P.R. Co.

• Decision Date: 22 January 1896
• Citation: 65 N.W. 831,96 Iowa 583
• Parties: ELVIN CARSON, by his Next Friend, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

65 N.W. 831

96 Iowa 583

ELVIN CARSON, by his Next Friend, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

January 22, 1896

Appeal from Marion District Court.--HON. A. W. WILKINSON, Judge.

Action for personal injuries. Judgment for plaintiff, and the defendant appealed.

Reversed.

Cummins & Wright, Robert Mather, and J. D. Gamble for appellant.

Warren Bros. and Earle & Prouty for appellee.

OPINION

Granger, J.

The plaintiff, a minor of the age of twelve years, brings this action by his next friend, to recover for an injury received while playing on a turntable owned by the defendant company. The turntable is situated on the depot grounds of the defendant at Pella, Iowa and is something over two hundred feet from the depot, and about one hundred and twenty-five feet from a lot or space used as a playground and, to quite an extent, as a public resort. The table is between the company's tracks and is in no way connected with the playground or any public way by a traveled track or path. The table was at times locked, and at others unlocked. It appears from the evidence that boys frequently visited it to play, and there is some evidence tending to show that the agent at Pella knew of this, but the fact is much in doubt. The table is a heavy piece of machinery for the turning of engines, but so constructed that the boys going there to play could, before getting on, put it in motion and then get on and ride. On the evening that plaintiff was hurt, he, with several other boys, went to the table, after dark,--some of the other boys reaching there before he did,--and when he came to the table it was in motion. He helped to push it a little and then jumped on the table, to ride. After getting on he walked across the table, along the track thereon, as we understand; and when the rails on the turntable came in line with the rails leading from the table, and while it was still in motion, plaintiff, in stepping off the table, got his foot between the end of the table and the side of the pit, and was injured. At the close of the plaintiff's testimony the defendant moved the court to direct a verdict for it on several grounds, among which were: first, because there was no negligence on the part of the defendant of which plaintiff can complain; and, second, the evidence shows affirmatively that the plaintiff was guilty of contributory negligence causing his injury. The court overruled the motion, and error is assigned on the ruling.

Unless we overrule the holding in Merryman v. Railway Co. 85 Iowa 634 (52 N.W. 545), we must reverse this case, for the cases cannot be distinguished on principle. The holding in that case has the support of both reason and authority, and it does not seem to be doubted. There is, however, an effort to distinguish the cases. In the Merryman Case the boy was thirteen years old. He jumped upon the table and lay down with his feet projecting beyond the end of the table, so that one leg was caught between the table and the embankment, and he was injured. The court below seems to...