Edgington v. Burlington, C. R. & N. Ry. Co.

• Decision Date: 12 April 1902
• Court: Iowa Supreme Court
• Parties: EDGINGTON v. BURLINGTON, C. R. & N. RY. CO.

116 Iowa 410

90 N.W. 95

EDGINGTON

v.BURLINGTON, C. R. & N. RY. CO.

Supreme Court of Iowa.

April 12, 1902.

Appeal from district court, Muscatine county; P. B. Wolfe, Judge.

Action at law for the recovery of damages on account of personal injury. Verdict and judgment for plaintiff, and defendant appeals. Affirmed.Carskaddan & Burk and S. K. Tracy, for appellant.

C. A. W. Kent and Clymer A. Coldren, for appellee.

WEAVER, J.

The defendant company owns and operates a line of railroad entering the city of Muscatine, Iowa. In connection with its station and yards at this place, it maintains and uses a turntable, a well-known machine or device for turning locomotives. This table turns about a central point or axis, and, when unfastened, is easily revolved by hand power applied to bars or levers. At and prior to the time of the accident upon which this action is based the table, when not in use, was ordinarily fastened by a pin, bolt, or latch of some kind, the exact description of which is not disclosed by the record before us. This machine stood upon an unfenced lot, owned by the defendant, near the line of a public alley, and at a distance from the street variously estimated at from 80 to 300 feet. Children of the neighborhood were to some considerable degree in the habit of passing through the alley, and at times loitered and played upon and about the turntable. This practice does not seem to have been with the express knowledge or consent of the defendant, and upon at least one occasion its employés drove the children away. There was a box factory not far distant, to which also children resorted by way of the alley, and near the turntable, to gather scraps of wood for fuel. On the 16th day of June, 1899, the plaintiff, then a child of seven years and eight months, living in that neighborhood, started from her home, with several little girls somewhat older, intending to go to the box factory for wood. Passing down the alley, they stopped to play upon the turntable. One of them removed the bolt or catch which fastened the machine, and soon afterward two small boys arrived, and began to revolve it, while the other children rode upon the platform or frame. Under these circumstances the plaintiff in some manner stepped or fell into the space between the outer edge of the table and the wall of the pit in which it revolved, receiving severe, painful, and permanent injuries. Negligence is charged against the defendant upon the theory or claim that the turntable was a dangerous machine, and of such nature and construction as to be specially attractive to children; and that, having placed it upon an open lot near a public way, where they might reasonably be expected to pass or gather to play, it was defendant's duty to use reasonable care to so guard or fasten said machine as to prevent injury to young and inexperienced children who might be tempted to play upon it. Defendant denies that it was charged with any such duty, and denies that it failed to exercise all reasonable and proper care in the premises. It further insists that the children, in playing upon the turntable, were trespassers, and the law imposed upon the defendant no duty to exercise any care for their safety except to refrain from willful or wanton injury to them after discovering them upon its property. It also claims that in entering upon the company's property without permission and in playing upon the turntable the plaintiff was guilty of contributory negligence, and therefore is not entitled to recover damages.

The question of the liability of a railroad company for injuries to children playing upon its turntables is one of interest and importance. During the last 30 years it has called for the consideration of many courts, both state and federal, throughout the United States, and has developed two opposing and irreconcilable lines of decisions, to which more extended reference is hereinafter made. Two cases of the kind have heretofore been presented to this court (Carson v. Railroad Co., 96 Iowa, 593, 65 N. W. 831, and Merryman v. Railroad Co., 85 Iowa, 634, 52 N. W. 545); but in each instance the party injured had reached an.age and maturity to be properly chargeable with contributory negligence, and a recovery was denied, without considering whether the company may be held liable under other circumstances. In this case, however, the child is of such tender years that we cannot say, as a matter of law, she was guilty of negligence contributing to her own injury, and we are thus called upon for the first time to assume a position upon the controverted question. In view of its importance, and the wide divergence in the views of eminent courts and lawyers, we have endeavored to give the subject that careful attention which it deserves, and, in our judgment, the conclusion at which we have arrived has the support of the greater weight of authority, and is most nearly in accord with the principles which underlie and pervade the laws of civilized society.

That the ordinary turntable is a very dangerous machine for children to play with, and possesses strong attractions to their sportive instincts, is manifest from the numerous cases of injuries thus received which come before the courts for adjudication. These cases are all strongly alike in their circumstances, and, generally speaking, the story of one is the story of all,--an open lot; a turntable insecurely fastened, or wholly unfastened; children gathering upon it, some riding while others work the levers; a misstep, a fall, and a little body is maimed, or a young life is extinguished. It is useless to moralize upon the instinct for play which controls the action of a child, or argue for its control by parental authority and guidance. It exists, ingrained in the child's being, and we must deal with it as we find it. Nothing seems to appeal to it more strongly than some device in the form of a merry-goround; and the temptation to ride it, if the opportunity offers, is practically irresistible, until approaching maturity brings some reasonable measure of judgment and discretion. Accepting these facts, we come to the vital question raised by the issue now before us: Is a landowner who exposes dangerous but attractive machinery upon an open lot in close proximity to a public way or other place where he may reasonably expect young children will pass or resort for play under any duty to fasten or guard such machinery, or to exercise care to provide against children interfering with it to their injury? The first instance in which this question, as applicable to turntables, was presented for judicial consideration, appears to have been in the federal courts. See Stout v. Railroad Co., 2 Dill. 294, Fed. Cas. No. 13,504, and the same case on appeal to the supreme court of the United States, 17 Wall. 657, 21 L. Ed. 745. In some of the reviews of this case it is assumed that this decision announces a new principle, and marks the abandonment of rules which prior thereto defined the extentof a man's dominion over his own property. This, as we shall try to demonstrate, is an error. It is true, the facts involved in the Stout Case were new to the courts, but the principle which controlled its decision has its root and life in the fundamental doctrines of the common law. The principle remains invariable, but its application must, of necessity, be extended and adjusted to the varying circumstances of business and of life. With the steady advance in industrial arts and sciences, the rapid expansion and diversification of business interests, and the increasing density of population forcing men into closer contact, and compelling them, in gradually increasing measure, to yield something of individual right for the general good, there arise from day to day for settlement by the courts disputes which are without precedent in their facts and circumstances. But their settlement requires no mere judicial experimentation, for somewhere in the treasure house of the law there is to be found the principle upon which the rights of parties may be justly determined. The basic principles of our jurisprudence have their birth in the enlightened conscience and the ineradicable distinction between right and wrong, and are unchangeable; but, as we have already noted, their use and application extend and expand to meet the demands of changing conditions.

The law thus presents the seeming paradox of a structure which is at once a finished product and a ceaseless evolution, developing new strength with each new demand upon its energies. The exercise of the sovereign power of eminent domain by private citizens for private profit; the extension of railroads to every city and every hamlet; the development of electricity as a source of heat, power, and light; the discovery and development of oil, gas, and other riches concealed beneath the earth's surface,--are but samples of a multitude of new and vastly important interests with which the courts have had to deal as matters of first impression within the memory of living men, and in each instance the seeming chaos of conflicting rights and theories has been reduced to order, and adjusted according to old-time rules wisely construed in the light of the conditions calling for their application. Not that every case has been correctly decided, or that every judicial opinion with which the books are filled is sound; but the great body of the law, as pronounced by the courts, is alive with the spirit of justice, and its tendency is uniformly and irresistibly toward the right. The rules which assure to a person dominion over his own property and deny protection to the trespasser in his wrongdoing are of the most ancient origin, and their justice is undisputed; but they are not entirely without limitation or restriction. Ordinarily, the owner of property, real or personal, may use or deal with it as he likes; but this right can never be divorced from the responsibility suggested...