Chi., B. & Q. R. Co. v. Krayenbuhl

• Citation: 91 N.W. 880,65 Neb. 889
• Court: Supreme Court of Nebraska
• Decision Date: 09 October 1902
• Parties: CHICAGO, B. & Q. R. CO. v. KRAYENBUHL.

65 Neb. 889

91 N.W. 880

CHICAGO, B. & Q. R. CO.

v.KRAYENBUHL.

Supreme Court of Nebraska.

Oct. 9, 1902.

Syllabus by the Court.

1. Petition examined, and held good, as against a demurrer ore tenus.

2. When the owner of dangerous premises knows, or has good reason to believe, that children, so young as to be ignorant of the danger, will resort to such premises, he is bound to take such precautions to keep them from such premises, or to protect them from injuries likely to result from the dangerous condition of the premises while there, as a man of ordinary care and prudence, under like circumstances, would take; approving Railroad Co. v. Bailey, 9 N. W. 50, 11 Neb. 336.

3. In such cases, in the determination of the question of negligence, regard must be had to the character and location of the premises, the purpose for which they are used, the probability of injury therefrom, the precautions necessary to prevent such injury, and the relation such precautions bear to the beneficial use of the premises. If, under all the circumstances, the owner omit such precautions as a man of ordinary care and prudence would take, under like circumstances, he is guilty of negligence.

4. Ordinarily, the question of negligence is one of fact for the jury, to be determined from all the facts and circumstances shown in evidence, and it is error for the court to group certain facts in evidence together, and instruct the jury that they constitute negligence.

5. In an action, by an infant in the care and custody of its father, for personal injuries, it is error to instruct the jury that his lessened earning capacity is an element of damages, unless it be limited to the period from which he would be entitled to his earnings.

6. An instruction authorizing the jury, in arriving at a verdict, to bring to bear their own knowledge, observation, and experience in the business affairs of life is erroneous when not limited to such knowledge, observation, and experience as they share in common with men generally.

7. An instruction relative to the damages to be awarded the plaintiff, if any, closed with the statement that they should not exceed a specific amount, naming the amount claimed in the petition. Held, that the practice of thus referring to the amount claimed should be discountenanced.

8. Instructions tendered examined, and held properly refused.

9. Rulings on the admission of evidence examined, and held not erroneous.

Commissioners' opinion. Department No. 3. Error to district court, Merrick county; Thompson, Judge.

Action by Leo Krayenbuhl, by his next friend, against the Chicago, Burlington & Quincy Railroad Company for personal injuries. There was judgment for plaintiff, and defendant brings error. Reversed.J. W. Deweese, F. E. Bishop, and John Patterson, for plaintiff in error.

Mathew Gering and Michael O'Donahue, for defendant in error.

ALBERT, C.

This action was brought on behalf of Leo Krayenbuhl, whom we shall hereafter call the plaintiff, by his next friend, against the Chicago, Burlington & Quincy Railroad Company to recover for personal injuries received by the plaintiff while playing on a turntable belonging to the defendant.

It sufficiently appears from the evidence that on and prior to the 20th day of October, 1895, the defendant operated a line of railroad, which extended through the village of Palmer, at which point it maintained a passenger depot, roundhouse, coalhouse, water tank, and turntable. A few rods northwest of the depot the road branched, one branch taking a westerly and the other a northwesterly course. The turntable was situated between those two branches, at a point about 1,600 feet from the depot, and about 100 feet from each branch, and a track extended to it from the point of divergence of the two branches. A path or footway, beginning some distance northwest of the turntable, extended in a southeasterly direction, passed within about 70 feet of it, and crossed the track at the south. This path was in common use, not only by the members of the family to which the plaintiff belonged, but by the public generally, and there was no fence between it and the turntable. The turntable was provided with a movable bolt, which by means of a lever could be thrown into a socket in the surrounding framework, thus holding the turntable in position. Provision was also made for locking it with a padlock. The rules of the defendant in force at the time required the foreman of the roundhouse, or in his absence the station agent, to keep the turntable locked when not in use; but there is considerable evidence to the effect that this rule was frequently disregarded, and that, owing to the looseness of one of the staples used in connection with the lock, even when thus fastened, it could be unfastened by young children without much difficulty. The plaintiff's father was in the employ of the defendant as section foreman, and, with his family, occupied a small house on the right of way near the station, within about 30 feet of the track, and about 1,600 feet from the turntable. Another family resided on the right of way, a few rods from the turntable. The two families visited back and forth, using the right of way for a path. The plaintiff's father kept a cow, which was pastured on the right of way, sometimes near the turntable, and it appears from the evidence that his children drove it back and forth on the right of way as occasion required. There is evidence tending to show that it was the common practice for the children of the family and other children in the neighborhood to resort to the coalhouse, roundhouse, and turntable, and to amuse themselves by revolving the turntable, and riding on it while it was in motion, and that this practice was known to the defendant, who permitted it without protest.

On the 20th day of October, 1895, in the absence of his parents, the plaintiff,--he was then four years of age,--in company with some other members of the family, the oldest of whom was eleven years old, and some other children, the oldest of whom was fourteen, were playing with a push car, moving it up and down on the railroad track. The agent in charge of the station joined them, and rode a short distance on the car. He then left them, and went to his rooms in the station. The children continued to push the car, and finally reached the turntable. There is evidence sufficient to sustain a finding that they found the turntable unlocked and unguarded, but the evidence is conflicting on that point. The plaintiff and some of the other children got on the turntable, while two of the others set it in motion. While it was in motion the plaintiff's foot was caught between the rails, and severed at the ankle joint. The injury thus sustained is that for which damages is sought in this action. A trial was had to a jury, which resulted in a verdict and judgment for the plaintiff. The defendant brings error.

The first question raised is that the petition does not state facts sufficient to constitute a cause of action. The grounds of this objection, as stated in the defendant's brief, are as follows: “It does not allege the authority of any agent of the defendant to invite the plaintiff upon its turntable, or any facts which constitute such express invitation. It does not allege the characteristics either of location or construction of the table, which of themselves render the table an invitation to the danger.” The petition is too long to set out at length. We think it will suffice to say that the allegations in these respects are that the plaintiff was induced by other small children, with the knowledge and consent of the defendant, its agents and servants, and by the invitation of the defendant, to come to and about the turntable. On the face of the petition, this is an allegation of an invitation by the defendant. If the plaintiff were invited by the defendant, he was invited by some agent of the defendant having authority in the premises. The allegation in that regard is sufficient. It is true the facts constituting such invitation are not set forth, nor do we deem it necessary that they should be for the purposes of the objection under consideration, which was first made by an objection to the introduction of any testimony, on the ground that the facts stated in the petition did not constitute a cause of action.

The question to which counsel have directed the greater portion of their arguments is whether the facts in this case are sufficient to sustain the verdict. On this question we have been favored with an exhaustive discussion of what is commonly known as the “doctrine of the Turntable Cases,” which applied to the facts in this case, would sustain the verdict. The leading case in support of this doctrine is Railroad Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745. The doctrine was reaffirmed by the same court in Railroad Co. v. McDonald, 152 U. S. 262, 14 Sup. Ct. 619, 38 L. Ed. 434, and was expressly approved by this court in Railroad Co. v. Bailey, 11 Neb. 336, 9 N. W. 50, and was approved and applied in the following among other cases: Barrett v. Pacific Co., 91 Cal. 296, 27 Pac. 666, 25 Am. St. Rep. 186;Keffe v. Railway Co., 21 Minn. 207, 18 Am. Rep. 393;Twist v. Railroad Co. (Minn.) 39 N. W. 402, 12 Am. St. Rep. 626;Railway Co. v. Fitzsimmons, 22 Kan. 686, 31 Am. Rep. 203;Navigation Co. v. Hedrick, 1 Wash. 446, 25 Pac. 335, 22 Am. St. Rep. 169; Railroad Co. v. Skidmore (Tex. Civ. App.) 65 S. W. 215;Railway Co. v. McWhirter, 77 Tex. 356, 14 S. W. 26, 19 Am. St. Rep. 755;Harriman v. Railway Co., 45 Ohio St. 11, 12 N. E. 451, 4 Am. St. Rep. 507;Ferguson v. Railway Co., 75 Ga. 637;Nagel v. Railway Co., 75 Mo. 653, 42 Am. Rep. 418.

The doctrine, as we gather it from the cases cited, is that where a turntable is so situated that its owner may reasonably expect that children too young to appreciate the danger will resort to it, and amuse themselves by using it, it is guilty of negligence for a failure to take...