Driscoll v. Clark

Citation80 P. 1,32 Mont. 172
PartiesDRISCOLL v. CLARK. [*]
Decision Date13 March 1905
CourtUnited States State Supreme Court of Montana

Commissioners' Opinion. Appeal from District Court, Silver Bow County; E. W Harney, Judge.

Action by Nora Driscoll, as guardian of John Joseph Driscoll, a minor, against William A. Clark. From a judgment for defendant, plaintiff appeals. Affirmed.

John Lindsay and J. H. Baldwin, for appellant.

W. M Bickford, for respondent.

CLAYBERG C. C.

Appeal from a judgment. The action was brought to recover damages for a personal injury to plaintiff's ward, arising from the alleged negligence of defendant in maintaining and operating what is claimed to be dangerous machinery upon his own premises.

The complaint, after preliminary allegations of the appointment of a guardian, alleges, in substance: That on or about June 5, 1903, the time of the injury, and for a long time prior thereto, the defendant carelessly and negligently and in disregard of duty had in use and operation, and used and operated, on the Steward lode claim, and within 10 feet of North Main street, certain dangerous machinery and apparatus consisting of an endless chain, to which there was attached large and sharp flanges or projections, for the purpose of transporting lumber to and from his mill, which endless chain was on June 5, 1903, and had been, operated and kept in rapid motion, and was wholly unguarded, unprotected, and uninclosed, notwithstanding the defendant "had been fully aware that said machinery and apparatus was of such a nature and character that children would be and were attracted thereby, and had been and were in the habit of congregating around and playing about the same." That on June 5th, and for some time prior thereto, John Joseph Driscoll, a minor, then five years old, "being attracted thereby, had," to the knowledge of defendant and his agents, then and there in the management and control and engaged in the operation of said machinery and apparatus "been playing around and about the same, and that notwithstanding said knowledge of the said defendant and his said agents, they, though fully aware of the danger in which said minor then was, wholly failed and neglected to exercise that degree of care and caution to avoid injuring said minor which a reasonable man would have exercised under like circumstances, in this: that they and each of them wholly failed and neglected to warn said minor against the dangers incident to his playing around and about the said machinery and apparatus, and wholly failed and neglected to request said minor to cease playing around and about the same, or to leave the immediate vicinity thereof, or in any wise take any steps to prevent injury to the said minor by reason of the use and operation of said machinery and apparatus by said defendant and his agents; and said *** minor became fastened upon said flanges or projections upon said endless chain, and was drawn thereby and while said machinery and apparatus was in rapid motion and operation, upon and toward other machinery used by said defendant in connection with said endless chain, and by said machinery and apparatus and the operation thereof by the said defendant as aforesaid" was injured. The remainder of the complaint simply alleges the directions of the probate court to the guardian to institute this suit. To this complaint a demurrer was interposed on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and plaintiff declined to amend. Judgment was rendered and entered in favor of defendant.

It is evident that counsel for plaintiff endeavored to frame a complaint which would bring the case within the doctrine of the "turntable cases," so called, and cases similar in character. His entire argument and brief on appeal seem to have been made to sustain the complaint under that doctrine. The doctrine of the "turntable cases," so called, was first announced in this country in the case of Railway Co. v. Stout, 17 Wall. 657, 21 L.Ed. 745, and has been followed by some courts of last resort. There seems, however, to be a growing tendency in the later cases to strictly limit the doctrine to cases falling within the facts disclosed by Railway Co. v. Stout, or to renounce the doctrine altogether. The principle underlying this doctrine is well illustrated by the case of Keffe v. Milwaukee & St. Paul Ry. Co., 21 Minn. 207, 18 Am. Rep. 393, in which the court says: "The complaint states that the defendant knew that the turntable, when left unfastened, was easily revolved; that, when left unfastened, it was very attractive, and, when put in motion by them, dangerous, to young children; and knew also that many children were in the habit of going upon it to play. The defendant therefore knew that by leaving this turntable unfastened and unguarded, it was not merely inviting young children to come upon the turntable, but was holding out an allurement, which, acting upon the natural instincts by which such children are controlled, drew them by those instincts into a hidden danger." This case, as well as that of Railway Co. v. Stout, supra, are referred to with approval in the case of Union P. Ry. Co. v. McDonald, 152 U.S. 262, 14 S.Ct. 619, 38 L.Ed. 434. An examination of the cases cited by appellant discloses that the dangerous machinery or other thing on defendant's premises was alleged to and did attract and allure children of tender years, and that defendant knew or was charged with the knowledge of that fact, and further knew that children frequented the place to play because of such allurement and attractiveness. The courts held that such facts amounted to an invitation to children to come upon the premises, and excused the technical trespass.

Under this doctrine, which is an exception to the common law, it must therefore clearly appear from the complaint that such invitation, either express or implied, exists. Indeed, the whole doctrine rests upon the existence of such invitation either express or implied, from the maintenance of dangerous machinery on the premises which is so especially and unusually alluring to children of tender years that they are attracted thereby, to the knowledge of defendant. From these facts the courts hold that a duty is charged upon defendant to keep this machinery safe from injury to children. This is illustrated by the case of San Antonio & A. P. Ry. Co. v. Morgan (Tex. Sup.) 46 S.W. 28. The complaint was quite voluminous. It alleged that the machinery (turntable) was dangerous, and "was calculated to attract, and did attract, the attention of children of tender years, who would be enticed thereto for amusement and pleasure." It also alleged "that the defendant, through its proper officers, agents, and servants, was fully aware of the dangerous character of said machine, and well knew the peril and danger to which the children who lived in Alice would be exposed by leaving the same unguarded and unfastened." The complaint then goes on to show how the accident occurred, and the damages. The court, in its opinion, discusses the question of negligence in such cases, and what allegations of duty are required, in the following language: "The law imposes upon the carrier certain duties towards his passenger, upon an employer certain duties towards his employé, and upon a person traveling a public street or highway certain duties towards others thereon, for the reason that these various relations of persons to each other are lawful. Hence, when facts are alleged showing the particular relation, the duty follows as a matter of law. When, however, one enters upon the private property of another, his relation to that property and the owner thereof is not prima facie lawful, and therefore the law does not merely, by reason of his presence thereon, impose upon the owner any duty of care for his protection, although his wrongful presence does not relieve the owner of the general duty imposed upon him by law, as a member of society, not to intentionally injury another. In such a case, to state a cause of action against the owner for damages for injury inflicted upon him while thereon, the petition need only show a violation of such general duty, or, in other words, and intentional injury. Such intent can be established either by direct evidence or by circumstances showing such a reckless disregard of the lives and safety of others as to estop the owner from denying the intent. As illustrating, if not fully, supporting, this principle, see Hydraulic Works Co. v. Orr, 83 Pa. 332, as explained in Gillespie v. McGowan, 100 Pa. 144, 45 Am. Rep. 365; Schmidt v. Distilling Co., 90 Mo. 284, 1 S.W. 865, 2 S.W. 417, 59 Am. Rep. 16; Harriman v. Railway Co., 45 Ohio St. 12, 12 N.E. 451, 4 Am. St. Rep. 507; Dunham v. Pitkin, 53 Mich. 507, 19 N.W. 166; Penso v. McCormick (Ind. Sup.) 25 N.E. 156, 9 L. R. A. 313, 21 Am. St. Rep. 211. If, however, the person entering upon the private property of another does so by invitation of the owner, a lawful relation is thereby established, and the law imposes upon the owner a duty of care for his safety, the degree of which we need not consider here. Such invitation may be express or implied. Where it is claimed to have been express, it is a mere question of fact as to whether it was extended, and no legal difficulty exists. Where, however, it is sought to establish the fact of invitation from circumstances, the greatest difficulty arises in determining the character of circumstances from which the fact of invitation can be inferred. This is especially true where, as in the case before us, the invitation is sought to be established by estoppel against what was in all probability the true intent of the owner. It has been contended broadly that when an owner places or permits...

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