Conrad v. Baltimore
| Decision Date | 24 March 1908 |
| Citation | 64 W.Va. 176 |
| Court | West Virginia Supreme Court |
| Parties | Conrad v. Baltimore & Ohio Railroad Co. |
1. Negligence Unguarded Premises Injuries to Infants.
The law imposes no liability upon a railroad company for maintaining, upon its private property, an unlocked, unfastened and unguarded turntable, in favor of children, though located in a thickly settled community, near a public street and on ground on which children are wont to congregate for play. (p. 176.)
Error to Circuit Court, Cabell County.
Action by Homer Sheila Conrad against the Baltimore & Ohio Railroad Company. Judgment for plaintiff, and defendant brings error.
Reversed.
Vinson & Thompson, for plaintiff in error.
Isbell & Perry, for defendant in error.
poffen barger, president:
The Baltimore & Ohio Railroad Company complains of a judgment for $500.00, rendered against it and in favor of Homer Sheila Conrad, an infant, on a demurrer to evidence by the circuit court of Cabell county, in an action for injuries sustained by the plaintiff while playing on an unlocked, unfastened and unguarded turntable, owned and operated by the defendant, and located in a thickly settled portion of Central City, a place of about three thousand inhabitants, about 150 feet from one of the principal cross streets, and near grounds on which children were wont to congregate and play. The turntable is on a spur track of the railway built by the Huntington and Big Sandy Railroad Company, and afterwards operated by the Ohio River Railroad Company and now by the Baltimore and Ohio Railroad Company as lessee or owner, but the table had not been in use for sometime before the accident happened. Plaintiff and other boys had frequently assisted the railway employees in turning engines on it by invitation. They had also played "Hide and Seek" and "Throw the Wicket" around it, and it was not unusual for some of them to start the turntable and ride on it. In this latter form of amusement, the plaintiff had not engaged until the day on which lie was hurt. Then he was down in the pit pushing the machine around, and, just before one end of it came to the fixed track rails, he jumped up on it, but, failing to get back far enough to avoid injury, his leg was caught and severely hurt both above and below the knee, the flesh being bruised, torn and lacerated in both places and a hone broken above the knee. He was a bright, intelligent little fellow about twelve years old, had worked in a glass factory for a considerable period of time before he was hurt, knew the danger incident to the operation of the turntable and would not have been hurt, had not another boy been so near the end of the machine that he could not get back out of danger.
The doctrine of what are known as "The Turntable Cases," first declared in Bail/road Co. v. Stout, 17 Wall. 657, and re-affirmed in Railroad Co. v. McDonald, 152 U. S. 262, has not been generally accepted by the state courts, nor is the authority of those cases more than merely persuasive here. On the contrary, it has been most emphatically repudiated in Massachusetts, New York, New Hampshire, New Jersey, Texas, Pennsylvania, Ohio and Virginia. Moreover, this Court has, in two cases, declared against it unequivocally, though a turntable accident was not involved in either of them. Ritz v. Wheeling, 45 W. Va. 262; Uthermohlen v.. Boggs Run Co., 50 W. Va. 457. It is true Judge Br annon, in delivering the opinion of the Court in the latter case, said "A turntable in a town is in a much frequented place, and though private property, the place is much used as a highway and the company may be held to know that children do and will come upon its premises," and then demonstrated the utter absence of any public character or right in the premises in question; but this affords no ground for an inference of approval, by him or the court, of the principle relied upon here. In the preceding paragraphs of the opinion he had vigorously condemned it. In the observation quoted, he was simply indicating inapplicability of the principle to the facts, if the court could yield assent to it as a sound principle of law. Though the declarations of this Court may be regarded as dicta, turntables not having been involved, that is immaterial since we approve the reasoning upon which the conclusions are based. Like other decisions, not binding as precedents, they are merely persuasive, as authority, but we see no ground upon which turntables can be distinguished from other lawful machines, fixtures or structures on an owner's premises, calculated to excite the curiosity, or induce the presence, of children. There is an utter lack of intention to do any person wrong in the construction, maintenance and operation thereof, and the right to perform these acts is incident to the ownership of the land whereon they are done. They are within the dominion and power the law allows an owner to exercise over his own property. Unfastened and unguarded turntables are sometimes called "attractive nuisances," but there is, in our opinion, no principle of the law of nuisance under which the appellation can be justified. A turntable is a useful and lawful machine, affixed to the owner's real estate, and incapable of doing any manner of harm to any person off of the land. It is immobile, not unsightly, not obstructive, not offensive in any sense. Nobody can be injured by it unless he come upon the land and set the machine in motion himself to his own injury. How can this be logically within the maxim Sic titere two ut alieum non laedas, so use your own as not to injure another's...
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