Foster v. Lusk

• Citation: 194 S.W. 855,129 Ark. 1
• Decision Date: 30 April 1917
• Docket Number: 340
• Parties: FOSTER v. LUSK et al., RECEIVERS ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY
• Court: Arkansas Supreme Court

194 S.W. 855

129 Ark. 1

FOSTER v. LUSK et al., RECEIVERS ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY

No. 340

Supreme Court of Arkansas

April 30, 1917

Appeal from Crawford Circuit Court; James Cochran, Judge; reversed.

Reversed and remanded.

Wear & London and J. A. Gallaher, for appellant.

The amended complaint stated a good cause of action and the demurrer should have been overruled. 60 Ark. 545; 70 Id. 331; 19 L. R. A. (N. S.) 1162; 79 N.E. 950. Where an owner permits anything dangerous which is attractive to children, and from which an injury may be anticipated, to remain unguarded on his premises, he will be liable if a child is attracted to the place and injured thereby. Cases supra. This case comes within the rule. The grossest negligence is shown.

W. F Evans of Missouri and B. R. Davidson, for appellees.

1. The company was not liable, and the demurrer was properly sustained. 55 Ark. 510; 56 Id. 280; 60 Id 333; 69 Id. 148-157; 79 Id. 353; 123 S.W 1182; 69 Id. 380; 64 Id. 364-9; 62 Id. 235. Infants may be trespassers. 36 Ark. 39; 15 S.W. 1057; 110 Id. 329; 116 Id. 557; 4 A. 106-110; 70 Id. 826; 17 Wall. 657; 57 Ark. 461-5; 98 Id. 72, 77; 97 Id. 160. The turntable cases only apply where the machinery or thing itself is dangerous and attractive, and this does not constitute negligence per se. 97 Ark. 160; 39 S.E. 82; 67 A. 768; 83 N.E. 66; 104 N.W. 827; 116 S.W. 557.

2. The railroad did not put the ties on the track and was not liable. 36 S.W. 340; 120 F. 921; 93 Ark. 398; 98 Ark. 72; 77 Id. 551.

OPINION

MCCULLOCH, C. J.

The plaintiff, Esther Foster, is an infant four years of age, and sues by her next friend to recover compensation for injuries alleged to have been sustained on account of the negligence of the receivers of the St. Louis & San Francisco Railroad Company in maintaining or permitting to be maintained on the premises of the company a dangerous condition, attractive to children, whereby the plaintiff received serious bodily injuries. The court sustained a demurrer to the complaint and dismissed the action, and the plaintiff has appealed.

The charge in the complaint is, in substance, that the defendants permitted the Hobart-Lee Tie Company to place crossties in piles or stacks on the right-of-way of the company at Rudy, Arkansas, a station on the line of said railroad, and that one of the stacks was, through negligence, constructed so that it was insecurely balanced and would easily topple over and fall; that said stack of ties was near a pile of sand placed on the right of way by the servants of the receivers for use in repair work, and that the pile of sand was very attractive to children, and did attract plaintiff and other children there to play; that the attractiveness of the sand pile and the danger of the situation with respect to its juxtaposition with the unevenly balanced stack of ties was known to the defendant, or could, by the exercise of ordinary care, have been known; and that the plaintiff was injured while playing in the sand pile, on account of the falling down of the stack of ties, one of the ties striking her and breaking her leg and inflicting other injuries. The complaint, omitting formal allegations, reads as follows:

"That on the 16th day of April, and for several weeks prior thereto, the defendant, Hobart-Lee Tie Company, by contract and by special permission and consent of the said James W Lusk, W. C. Nixon and W. B. Biddle, as said receivers of said railroad company, did have piled or stacked up several hundred crossties in stacks or piles on the right of way of the said St. Louis & San Francisco Railroad in the town of Rudy, Crawford County, Arkansas, which ties were on the west side of the railroad track and about ten feet from the track near the railroad station in the town of Rudy. That the defendants" * * * "knew that said crossties were stacked on their right of way in the town of Rudy as aforesaid. That said Hobart-Lee Tie Company carelessly and negligently stacked one pile of said crossties so that they would fall and tumble down at the slightest touch by even children who might be playing around them, and left them in that condition until after April 16, 1916, upon which date they fell or tumbled down and one or more of said ties fell upon plaintiff, Esther Foster, and painfully and seriously injured her by breaking her left arm and left leg and mashing and bruising her left side. That the defendants" * * * "knew that said stack of crossties was thus negligently and carelessly piled on their right of way at Rudy, Crawford County, Arkansas, and that they were liable to fall or tumble down and hurt some little child or children who might be attracted to play around them because said pile of crossties was stacked upon and near a sand pile, which sand pile attracted little children to play upon and on it, and which fact was known to said defendants. Said sand pile was placed there by defendants through their servants and representatives." * * * "That the defendants" * * * "well knew or should have known that children of immature years and judgment would be attracted to said stack of crossties to play around them as said stack of crossties were in the town of Rudy and near the depot and right out in front of the home of the section foreman, Si Combs, of the St. Louis & San Francisco Railroad Company, where he lived with his family, among whom were small children, who often played with other children, among whom was the plaintiff, Esther Foster, about, around and upon the right-of-way of said railroad company at that point and location, said children being attracted to play upon said right-of-way of said railroad company at that point and location because they were attracted to play there by a sand pile being situated upon said right-of-way of said railroad company at that point and location and said defendants were aware of the fact that small children were attracted to play there by reason of said sand pile being attractive to small children, and said defendants knew that small children did play there before they carelessly and negligently stacked said pile of crossties at that point in the manner aforesaid. That after said stack of crossties were thus piled up on the right-of-way of said railroad company as aforesaid the plaintiff, Esther Foster, with the children of the section foreman, Si Combs, aforesaid, with other children, often played around said pile or stack of crossties, which was known and observed by all the defendants, their agents, servants and representatives." * * * "That on the 16th day of April, 1916, at about 5 o'clock p. m., while the plaintiff, Esther Foster, and her little sister, Ethel Foster, who is only six...