Central of Georgia R. Co. v. Robins

• Decision Date: 04 January 1923
• Docket Number: 7 Div. 238.
• Citation: 209 Ala. 6,95 So. 367
• Parties: CENTRAL OF GEORGIA R. CO. v. ROBINS.
• Court: Alabama Supreme Court

95 So. 367

209 Ala. 6

CENTRAL OF GEORGIA R. CO. v. ROBINS.

7 Div. 238.

Supreme Court of Alabama

January 4, 1923

Appeal from Circuit Court, Talladega County; S.W. Tate, Special Judge.

Action by Harold R. Robins, by his next friend, Charles S. Robins against the Central of Georgia Railroad Company. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Reversed and remanded.

Nesbit & Sadler and J. M. Gillespy, Jr., all of Birmingham, for appellant.

Riddle & Riddle, of Talladega, for appellee.

SOMERVILLE J.

Under the facts and conditions shown, we hold that the bill of exceptions was properly presented to a justice of this court and was duly established as a correct and legal bill of exceptions in the cause, in accordance with the provisions of Act September 25, 1915 (Gen.

Acts 1915, p. 816), amending section 3022 of the Code. Munson S. S. Line v. Harrison, 200 Ala. 504, 76 So. 446. The motion to strike the bill of exceptions will therefore be overruled.

The plaintiff, a boy 15 years of age, of normal growth and intelligence, went upon defendant's premises, in company with several younger children, and, while playing with defendant's turntable, which was left unfastened suffered the injury of a broken leg.

The chief and, indeed, the decisive question presented by this appeal is whether or not the doctrine of the "turntable cases" is applicable to any normal child who has passed the age of 14 years. The doctrine of liability in this class of cases was settled in this state by the case of A. G S. R. Co. v. Crocker, 131 Ala. 584, 31 So. 561 which followed the decision of the federal Supreme Court in the pioneer case of Sioux City, etc., R. Co. v. Stout, 17 Wall. 657, 21 L.Ed. 745. The report of the Stout Case shows that the injured child was only 6 years old, and the opinion formulates the doctrine upon the predicate of the duty owed to "an infant of tender years." In the Crocker Case, supra, also, the child was only 6 years old. With respect to the "turntable cases" and "attractive nuisance cases," the editor of Ruling Case Law observes:

"These decisions establish that while a proprietor may owe no duty to adults with respect to instrumentalities maintained by him, he may be liable for injuries to a child of tender years for injuries sustained from the same instrumentalities." (Italics ours.) 20 R. C. L. 79, § 70.

Pertinent to the question now before us, the same authority says:

"Inasmuch as the injured child's appreciation of the danger embodied by the offending instrumentality is a criterion for determining liability, it is obvious that the age of the injured child is of the first importance in determining whether a recovery should be allowed in any particular case. It has been said that the turntable doctrine is intended for the protection of children of tender years, whom from immaturity are incapable of exercising a proper degree of care for their own protection. Little or no direct consideration has been paid, however, to the age of the injured child. Indeed, some of the reports fail to state it entirely. Nevertheless, it appears clearly enough that the older and more intelligent the child, the less reason is there for permitting a recovery. In many cases where men, or boys approaching manhood, would be held to be negligent, younger boys and boys with less intelligence would not be. And the question of negligence is, in nearly all cases, one of fact for the jury, whether the person charged with negligence is of full age or not. But while the courts have given little direct attention to the element of age, and have fixed upon no particular age as one to which the turntable doctrine shall or shall not be applicable as a matter of law, an age limit may be inferred with reasonable assurance, though of course the nature of the instrumentality is to be taken into consideration, for a child of any particular age may appreciate the peril of one thing but not of another. Some perils, such for example as fire or open water, must be obvious even to the most immature intellect. On the other hand, seldom will a recovery be allowed for injuries to boys of fourteen, thirteen, or even twelve years of age, unless they are shown to have been of inferior intelligence. The truth of the matter seems to be that the turntable doctrine furnishes justification for a recovery by children who have gotten old enough to go about unattended but are yet unaware of the perils embodied by machinery and other instrumentalities of an artificial nature-the period between the ages of five and ten." 20 R. C. L. 87, § 77.

See, also, Id. § 80.

The cases seem to fully sustain the statements of the text above quoted, and in practically every statement of the rule of liability it is grounded upon the duty owed to children of "tender years," whose imprudences are usually due to the play of childish instincts, unenlightened by experience, and unrestrained by reason. See note to Barnes v. Schreveport City R. R. Co., 49 Am. St. Rep. 417, 418. In his note to Westbrook v. Mobile, etc., R. Co. (Miss.) 14 Am. St. Rep. 595, Judge Freeman remarks that the rule of the "turntable cases" has been applied by the courts in many of the states "to children from five to twelve years of age." And in Belt Ry. Co. v. Charters, 123 Ill.App. 322, 329, it was said that-

"An examination of the 'attractive nuisance' cases will show that in nearly every instance the child injured was less than ten years of age and incapable of exercising ordinary care."

In the well-considered case of Heasley v. Winona & St. P. R. Co., 46 Minn. 233, 48 N.W. 1023, 24 Am. St. Rep. 220, 223, in upholding and applying the rule of liability, the court said:

"But nothing more than ordinary or reasonable care is required of persons who have placed upon their own premises such dangerous machinery as turntables, attractive, alluring, and open to children of tender years, strictly non sui juris."

In the case of Shaw v. C. & A. R. R. Co. (Mo. Sup.) 184 S.W. 1151, which was not a turntable case, the court said:

"It would be a very exceptional state of facts which would render the doctrine of attractive nuisances applicable to a strong, active, healthy, and intelligent girl 15 1/2 years old. The industry of counsel has unearthed one case applying the doctrine to a 14 year old boy. That case was exceptional

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