Driscoll v. Clark
Decision Date | 13 March 1905 |
Citation | 80 P. 1,32 Mont. 172 |
Parties | DRISCOLL v. CLARK. [*] |
Court | Montana Supreme Court |
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.
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: 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: ...
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