Erickson v. Great Northern Railway Company
| Decision Date | 14 December 1900 |
| Docket Number | 12,354 - (92) |
| Citation | 84 N.W. 462,82 Minn. 60 |
| Parties | ANDREW G. ERICKSON v. GREAT NORTHERN RAILWAY COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Mille Lacs county by plaintiff, as administrator of the estate of Anna Charlotte Erickson deceased, to recover $5,000 damages on account of the death of decedent. On the trial the court, Searle, J., sustained the objection of defendant to the admission of evidence under the complaint on the ground that it did not state facts constituting a cause of action, and ordered judgment in favor of defendant. From an order denying a motion for a new trial plaintiff appealed. Affirmed.
Railway -- Fire on Right of Way -- Death of Child.
The defendant set fire to stumps and rubbish on its right of way, and the plaintiff's intestate, a child four years of age, went to the fire, and while playing with it she was burned so that she died. This action was brought to recover damages for her death, on the ground that the right of way was not fenced, and also on the ground that the defendant left the fire unguarded. Held:
Complaint -- Allegations Omitted.
1. That the complaint does not allege any facts showing that the child went upon the right of way at any point which it is alleged was unfenced, or at any point which the defendant might lawfully have protected by a fence.
Turntable Cases -- Limitation of Doctrine.
2. That, as a general rule, the doctrine of Keffe v. Milwaukee & St. P. Ry. Co., 21 Minn. 207, should be limited in its application to cases of attractive and dangerous machinery and to other similar cases where the danger is latent.
Duty of Defendant.
3. That the defendant was not bound to exercise due care to so guard the fire on its right of way that children intruding thereon could not come in dangerous contact with the fire, though induced so to do by its attractiveness.
H. V. Mercer, for appellant.
W. E. Dodge, for respondent.
The plaintiff's intestate was a child four years old, who on September 15, 1899, while playing with fire on the defendant's right of way, was so seriously burned that she died. This action was brought to recover damages for the benefit of her next of kin, on the ground that her death was due to the negligence of the defendant. On the trial the court sustained the objection of the defendant to the admission of any evidence, on the ground that the complaint did not state facts constituting a cause of action, and ordered judgment for the defendant. The plaintiff appealed from an order denying his motion for a new trial.
The complaint, after alleging that the defendant owns and operates a railroad through the village of Milaca, this state, and that the plaintiff was the father of the child, and had been duly appointed administrator of her estate, alleged substantially these facts: On the 15th day of September, 1899, it was the duty of the defendant to keep its right of way in the village of Milaca fenced, but it unlawfully and negligently failed to fence its right of way, or any portion thereof, in such village. On the right of way north of the depot of its railway, near a public street, which was used for travel, and near several dwelling houses occupied by people having children of immature years, and on September 13, the defendant negligently caused fires to be set to three piles of stumps and rubbish then upon its right of way, and it negligently left the fires burning and unguarded until on and after September 15. At the time the fires were set, and for a long time prior thereto, its right of way at this place had not been fenced, and was then open and entirely without fence, and was located about the center of the village of Milaca. This location on its right of way had long been a common playground for the children of tender years living near by, all of which was well known to the defendant. But the plaintiff's intestate had not played thereon prior to September 15. If its right of way had been well and properly fenced at such point, the children could not and would not have gone thereon to play at any time, and the deceased child would not have gone thereon to play, as she did on September 15. The fires so set and so left burning were attractive to children of tender years, and had a strong tendency to allure them to play in and around the fires, and thus allure and entrap them into great dangers which were a menace to their lives, and which, by reason of their tender years and immature judgment, they could neither apprehend nor appreciate, all of which was well known to the defendant, whereby the deceased was induced to and did so enter upon the right of way of the defendant to play in and with the fires so set, without knowing the danger thereof, and thereby her clothing was set on fire, and she was so badly burned that she died as a result of such injuries. It was the duty of the defendant to refrain from setting such fires, unless they were properly guarded, and it was its duty to have prevented the child from going upon its right of way and playing around the fires. But it negligently set the fires and negligently permitted them to burn without being guarded, and it thereby invited her upon its premises to play in and around the fires.
1. It is claimed by the defendant that the complaint does not allege any facts showing that the child went upon its right of way at any point which it is alleged was unfenced, or at any point which it might lawfully have protected by a fence. A majority of the justices of the court are of the opinion that this contention is correct.
It is true that the complaint alleges that it was the duty of the defendant to keep its right of way in the village of Milaca fenced, and that it negligently failed to fence any portion in such village; but it was necessary for the plaintiff to allege with reasonable certainty the place where the child entered upon the defendant's right of way, so that the defendant might allege and show, if such were the fact, that such place was its depot grounds or a public street, which public convenience required to be left open, and which it was therefore not only not bound to fence, but which it had no right to enclose. Now, for aught that appears from the allegations of the complaint, the child may have gained access to its right of way from the defendant's depot grounds or a public street. The conclusion alleged in the complaint, that, if the right of way had been fenced at the place on its right of way where the fire was left burning, the child could not and would not have gone thereon to play, cannot be construed as an allegation of fact, to the effect that she entered upon the right of way at the point where the fire was. On the contrary, it is affirmatively alleged that the place in question was "on the said right of way north of the depot of said railway near a public street which was used for travel," and was located about the center of the village.
Such being the case, and there being no direct allegation as to the point where she entered upon the premises of the defendant, if any inferences are to be indulged as to the point of entry it is not unreasonable to infer that she entered from the street. The court therefore holds that, in so far as the plaintiff's alleged cause of action depends upon the neglect of the defendant of its statutory duty to fence its right of way, the complaint does not state a cause of action. Whether the absence of the fence,...
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