Frost v. E. R. R.

• Decision Date: 11 March 1887
• Citation: 9 A. 790,64 N.H. 220
• Parties: FROST v. EASTERN R. R.
• Court: New Hampshire Supreme Court

9 A. 790

64 N.H. 220

FROST

v. EASTERN R. R.¹

Supreme Court of New Hampshire.

March 11, 1887.

Reserved case from Strafford county.

Case for personal injuries from the alleged negligence of the defendant in not properly guarding and securing a turn-table.

The plaintiff, who sues by his father and next friend, was seven years old when the accident occurred, June 23, 1877, and the action was commenced June 7, 1884. Plea, the general issue and statute of limitations. A motion for a nonsuit was denied, and the defendant excepted. Verdict for the plaintiff. The facts are sufficiently stated in the opinion.

Dodge & Caverly and W. J. Copeland, for plaintiff.

J. S. E. Frink and C. B. Gafney, for defendant.

CLARK, J. The action is not barred by the statute of limitations. "Any infant, married woman, or insane person may bring any personal actions within two years after such disability is removed." Gen. Laws, c. 221, § 7. As a general rule, in cases where a disability exists when the right of action accrues, the statute does not run during the continuance of the disability, and it has not commenced to run against the plaintiff. Pierce v. Dustin, 24 N. H. 417; Little v. Downing, 37 N. H. 356. It is said that the plaintiff's next friend was under no disability; that he could have brought the action at any time within six years after the right of action accrued, and therefore the statute should apply in this ease. It is an answer to this suggestion that it is the infant's action, and the failure of the next friend to bring suit within six years is no bar to the plaintiff's right of action. Wood, Lim. 476.

The motion for a nonsuit raises the question whether there was evidence upon which the jury could properly find a verdict for the plaintiff. Paine v. Railway, 58 N. H. 611. The ground of the action is that the defendant was guilty of negligence in maintaining a turn-table insecurely guarded, which, being wrongfully set in motion by older boys, caused an injury to the plaintiff, who was at that time seven years old, and was attracted to the turn-table by the noise of the older and larger boys turning and playing upon it. The turn-table was situated on the defendant's land, about 60 feet from the public street, and in a cut with high steep embankments on each side, and the land on each side was private property and fenced. It was fastened by a toggle, which prevented its being set in motion unless the toggle was drawn by a lever to which was attached a switch padlock, which, being locked, prevented the lever from being used unless the staple was drawn. At the time of the accident the turn-table was fastened by the toggle, but it was a controverted point whether the padlock was then locked. When secured by the toggle, and not locked with the padlock, the turn-table could not be set in motion by boys of the age and strength of the plaintiff. Upon these facts we think the action cannot be maintained. The alleged negligence complained of relates to the construction and condition of the turn-table, and it is not claimed that the defendant was guilty of any active misconduct towards the plaintiff. The right of a land-owner in the use of his own land is not limited or qualified like the enjoyment of a right or privilege in which others have an interest, as the use of a street for highway purposes under the general law, or for other purposes under special license, (Moynihan v. Whidden, 143 Mass. 287, 9 N. E. Rep. 645,) where care must be taken not to infringe upon the lawful rights of others. At the time of his injury, the plaintiff was using the defendant's premises as a play-ground without right. The turn-table was required in operating the defendant's railroad. It was located on its own land, so far removed from the highway as not to interfere with the convenience and safety of the public travel, and it was not a trap set for the purpose of injuring trespassers. Aldrich v. Wright, 53 N. H. 404. Under these circumstances, the defendant owed no duty to the plaintiff, and there can be no negligence or breach of duty where there is no act or service which the party is bound to perform or fulfill. A land-owner is not required to take active measures to insure the safety of intruders, nor is he liable for an injury resulting from the lawful use of his premises to one entering upon them without right. A trespasser ordinarily assumes all risk of danger from the condition of the premises, and to recover for an injury happening to him he must show that it was wantonly inflicted, or that the owner or...