Erickson v. Minneapolis, St. Paul & Sault Ste. Marie Railway Company

• Decision Date: 13 November 1925
• Docket Number: 24,888
• Citation: 205 N.W. 889,165 Minn. 106
• Parties: PETER ERICKSON v. MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILWAY COMPANY AND ANOTHER
• Court: Minnesota Supreme Court

205 N.W. 889

165 Minn. 106

PETER ERICKSON v. MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILWAY COMPANY AND ANOTHER

No. 24,888

Supreme Court of Minnesota

November 13, 1925

Action in the district court for St. Louis county to recover for injuries to plaintiff's minor son. Defendant railway company appealed from an order, Grannis, J., overruling its demurrer to the complaint. Affirmed.

SYLLABUS

Complaint bad on demurrer whether on theory of turntable doctrine or theory of ordinary negligence.

Defendants were operating a well-drilling outfit upon a public street. The power was furnished by a gasolene engine and transmitted by an ordinary drive belt. An eleven-year old child, with the knowledge of defendants, was playing about the machinery in the presence of an obvious danger. Defendants did nothing to warn him of such danger. The child came in contact with the drive belt and was injured. Held:

(1) That the complaint does not state facts sufficient to state a cause of action upon the theory of the turntable doctrine because:

(a) The instrumentality was not of such character as to amount to an invitation; (b) the danger was patent and not latent; (c) the characteristics of the agency and its general and common use render it impractical and unreasonable to fence or guard by inclosure.

(2) That the complaint states facts sufficient to constitute a cause of action upon the theory of ordinary negligence in that under all the circumstances the facts stated imposed a duty upon defendants to have warned the child of the danger.

1. See Negligence, 29 Cyc. p. 465 (Anno).

2. See Negligence, 29 Cyc. p. 567.

1, 2. See notes in 19 L.R.A.(N.S.) 1130; L.R.A. 1917F, 94; 20 R.C.L. p. 93; 3 R.C.L. Supp. p. 1028.

Fryberger Fulton, Hoshour & Ziesmer and John E. Palmer, for appellant.

M. E. Louisell, for respondent.

OPINION

WILSON, C.J.

This is an action brought by plaintiff for the benefit of his minor son to recover damages for personal injuries to the son. Defendant C. W. Roome answered. Defendant railway company demurred upon the ground that the facts stated in the complaint were not sufficient to constitute a cause of action. The trial court overruled the demurrer, but certified that the question presented by the demurrer was important and doubtful. The railway company appealed.

The complaint alleges the status of the parties. That defendants were engaged in drilling a well on the premises of the railroad company and in connection therewith used a derrick, pipes, pile hammer, gasolene engine with belt and paraphernalia used in raising and lowering pipes and apparatus. That such equipment was located in a thickly-settled portion of the city of Duluth and was operated on the southwest corner of Twentieth avenue West and West Michigan street. That this corner was generally used by pedestrians in crossing said corner diagonally from West Michigan street to the west side of Twentieth avenue west and vice versa and had been so used for many years last past, all to the knowledge of defendants. That the premises so being used by defendants were uninclosed and the equipment was within 20 to 30 feet of the two mentioned thoroughfares. That on February 7, 1925, defendants were engaged in said project and were operating the gasolene engine with certain belting attached to pulleys on the engine and on the derrick and the same was being operated with great speed and the equipment was wholly unguarded and in such condition that it was easily reached and was attractive to young children playing about said premises on said corner, as the defendants well knew. That children were attracted to and were in the habit of playing about said equipment to the knowledge of defendants. That defendants negligently failed to guard said equipment by fence or otherwise. That at said times plaintiff's 11-year-old child and other children, all too young to appreciate and who did not appreciate the danger of doing so, were playing within a few feet of the operating derrick and gasolene engine, all unguarded as aforesaid, and that they were attracted by the operation of the belt and machinery, and plaintiff's son touched the belt with his hand on which he had a mitten and as the result thereof injuries followed, a part of which resulted in a wrenched arm and in the amputation of a thumb. That said children were seen by those in charge of the work, but that defendants did not take any steps to warn them of danger nor to protect them from the dangers to which they were exposed and that injuries and damage resulted.

It is the contention of plaintiff that the complaint states a cause of action under the doctrine of the turntable cases. It has long been the settled law of this state that, when a person sets before young children a temptation which he has reason to believe will lead them into danger, he must use ordinary care to protect them from harm. In Keffe v. M. & St. P. Ry. Co. 21 Minn. 207, 18 Am. Rep. 393, it was held that the defendant was guilty of negligence in leaving a turntable unfastened, because it was a place where children were induced to amuse themselves by putting it in motion when not fastened. The premises were such as to invite their presence, and the danger was not apparent, but concealed. Where the owner keeps the turntable fastened, there is no liability because then reasonable care is exercised. Kolsti v. M. & St. L. Ry. Co. 32 Minn. 133, 19 N.W. 655. Then the latent danger does not exist. The foundation for liability in these cases is that such machinery or apparatus "being attractive to young children, presents to them a strong temptation to play with it, and thus allures them into a danger whose nature and extent they, being without judgment and discretion, can neither apprehend nor appreciate, and against which they cannot protect themselves; that such children may be said to be induced by the owner's own conduct to come upon the premises; that what an express invitation is to an adult, an attractive plaything is to a child of tender years; that as to them such machinery is a hidden danger -- a trap." Twist v. W. & St. P.R. Co. 39 Minn. 164, 39 N.W. 402, 12 Am. St. 626; O'Malley v. St. P.M. & M. Ry. Co. 43 Minn. 289, 45 N.W. 440; Ellington v. G.N. Ry. Co. 96 Minn. 176, 104 N.W. 827. This doctrine seems to be grounded in the doctrine of Townsend v. Wathen, 9 East, 277, mentioned in the Keffe case, supra.

The doctrine under consideration should not apply when the nature of the work, the character of the instrumentality and the manner in which it is operated are patent. Emerson v. Peteler, 35 Minn. 481, 29 N.W. 311, 59 Am. Rep. 337. In Twist v. W. & St. P.R. Co. supra, Mr. Justice Mitchell said this:

"Properly qualified and limited in its application, the doctrine of the Keffe Case is, in our judgment, in accordance with both reason and the dictates of humanity. But some of the cases have undoubtedly gone too far. By adopting an extreme or extraordinary standard of duty on the part of the landowner on the one said, and on the other side by attributing the conduct of all children to their childish instincts so as to exempt them from the charge of contributory negligence, regardless of age or mental capacity, it is obvious that the rule of the Keffe and similar cases is capable of indefinite and unbounded applicability. To the irrepressible spirit of curiosity and intermeddling of the average boy there is no limit to the objects which can be made attractive playthings. In the exercise of his youthful ingenuity, he can make a playing out of almost anything, and then so use it as to expose himself to danger. If all this is to be charged to natural childish instincts, and the owners of property are to be required to anticipate and guard against it, the result would be that it would be unsafe for a man to own property, and the duty of the protection of children would be charged upon every member of the community except the parents or the children themselves."

One of the essential elements is that the machine is a temptation which the owner should know will lead children into danger. Haesley v. W. & St. P.R. Co. 46 Minn. 233, 48 N.W. 1023, 24 Am. St. 220. The temptation means, of course, an instrumentality of such enticing and alluring characteristics as to constitute, in law, an implied invitation.

The doctrine will be applied only when the facts come strictly and fully within the rule. Twist v. W. & St. P.R. Co. supra, Erickson v. G.N. Ry. Co. 82 Minn. 60, 84 N.W. 462, 51 L.R.A. 645, 83 Am. St. 410; Stendal v. Boyd, 67 Minn. 279, 69 N.W. 899. In the last case it is said that the doctrine of the turntable cases does not extend to a pond, although children are induced to go into it by its allurements. Ample reasons are given for the conclusion reached.

Running through the turntable decisions is the constant thought that the machinery involved is attractive to young children, and that the owner, by leaving it unguarded, is not only inviting young children to approach it, but that it holds out an allurement which, acting upon the natural instincts by which such children are controlled, draws them into a hidden danger. In Kayser v. Lindell, 73 Minn. 123, 75 N.W. 1038, it was held that this doctrine did not apply to a case where a 3 1/2-year old child climbed upon a retaining wall and was injured by falling therefrom. It was there said that the case did not present a trap; that the wall was plain to be seen; that the child knew it was there and fell off of it in the daytime. In fact, in a very thoroughly considered case, Chief Justice Start said in Erickson v. G.N. Ry. Co. 82 Minn. 60, 84 N.W. 462, 51 L.R.A. 645, 83 Am. St. 410:

"The manifest trend, however, of all the decisions of this court is to limit its application to...