Fusselman v. Yellowstone Valley Land & Irrigation Co.

Decision Date16 February 1917
Docket Number3731.
CourtMontana Supreme Court

Appeal from District Court, Park County; Ben B. Law, Judge.

Action by E. W. Fusselman against the Yellowstone Valley Land & Irrigation Company. From an adverse judgment and order plaintiff appeals. Affirmed.

Walsh Nolan & Scallon, of Helena, for appellant.

F. L Gibson and Miller & O'Connor, all of Livingston, for respondent.


In 1913 the Yellowstone Valley Land & Irrigation Company maintained a canal for conveying water from the Yellowstone river for irrigation purposes. The canal passed through a portion of the city of Livingston and along and across many streets and alleys. Permission to run the canal through the city had been obtained, and Ordinance 99 had been adopted defining the rights and duties of the company within the city. Among other things, it was required to keep the canal covered wherever it ran in or across a street or alley, but this duty had been neglected, and there was not any covering over the canal where it crossed Yellowstone street or Gallatin street or in the vicinity of the intersection of those streets, except a bridge 14 feet in length near the center of Yellowstone street. On May 23, 1913, the dead body of Birdena Fusselman was taken from the canal at a point down the canal and 1,100 feet east of the Yellowstone street bridge. This action was brought by the father of the deceased to recover damages. Issues were framed and a trial had. At the conclusion of the evidence the district court directed a verdict for the defendant, and plaintiff appealed from the judgment entered thereon and from an order denying his motion for a new trial. Appellant advances two theories upon either of which he insists that a case was made for the jury.

1. It is first contended that even though the deceased was upon the private property of the defendant at the time she fell into the canal, liability may nevertheless attach if the canal, as located with the water flowing in it, was peculiarly attractive to children of tender years, if it was dangerous, if small children were accustomed to play about it and were likely to fall into it and be drowned, and if these facts were known to the defendant or should have been known to it and reasonable care was not taken to prevent injury. In other words, it is sought to invoke the rule announced in Railroad Co. v. Stout, 17 Wall. 657, 21 L.Ed. 745.

The doctrine of the turntable cases proceeds upon the assumption that the injured party, if an adult, would have been a trespasser, but because of his tender years and indiscretion is not subject to the rule of liability applicable to trespassers. Any one who goes upon the private property of another without lawful authority or without permission or invitation, express or implied, is a trespasser to whom the landowner owes no legal duty until his presence is discovered. He is only required to refrain from wanton or willful acts which occasion injury. Egan v. Montana Cent. Ry. Co., 24 Mont. 569, 63 P. 831. A person upon the private property of another by invitation, express or implied, is there rightfully, and to him the landowner owes the positive duty to exercise reasonable care for his safety. Montague v. Hanson, 38 Mont. 376, 99 P. 1063. It is not contended that the defendant or any officer or agent of it knew of the presence of Birdena Fusselman upon the right of way or along the canal immediately, or at any time, before her death, or that her death resulted from any wanton or willful acts of the defendant. Neither is there any contention made that the company ever expressly invited the deceased to come upon its property; so that the only possible theory upon which liability may attach under this view of the case is that the deceased was at the canal pursuant to an implied invitation extended to her by the canal company, and that the invitation was to be implied from the acts of the defendant in maintaining the canal under the circumstances disclosed.

In passing, it may be said that no other subject within the domain of the law has given rise to greater divergence of judicial opinion than the doctrine of the Stout Case. In some jurisdictions it is repudiated altogether; in others applied strictly; in others adopted in a more or less modified form; while in others it has been extended to such a variety of cases that it has lost its original identity and has become a new rule of the substantive law of negligence. The courts which give recognition to the doctrine are not agreed upon the principle which underlies it and encounter difficulty in defining the doctrine itself. By some of these courts it is treated as an exception to the general rule of nonliability to trespassers--an exception born of necessity and applied out of consideration for the irresponsibility of infancy. Others invoke the doctrine only in cases where an invitation can be implied from the acts of the landowner, upon the theory that, "what an express invitation would be to an adult, the temptation of an attractive plaything is to a child of tender years." Keffe v. Milwaukee, etc., R. Co., 21 Minn. 207, 18 Am. Rep. 393. So much has been written upon the subject that we shall not attempt to add anything new to the discussion. To review the decided cases is useless, and to reconcile them is impossible. An extended reference to them will be found in Bottum's Adm'r v. Hawks, 84 Vt. 370, 79 A. 858, 35 L. R. A. (N. S.) 440, and in the notes to the same case in Ann. Cas. 1913A, 1032.

In the trial of the Stout Case, Judge Dillon instructed the jury that notwithstanding the child was upon the private property of the company at the time he was injured, liability would attach if the jury found: (a) That the turntable, in its then condition, situation, and place, was a dangerous machine, which, if left unguarded and unlocked, would be likely to cause injury to children; (b) that the company knew or ought to have known that children resorted to the turntable to play, and that they would likely be injured by it; and (c) that the company employed no means to keep children away or to prevent accidents to them. Stout v. Sioux City & P. R. Co., 2 Dill. 294, F. Cas. No. 13,504. In the Supreme Court the instructions were approved as sound and judicious, and reference is made to the rule of reasonable care--the rule which measures the duty of the landowner to one rightfully upon his property. The court did not assume to state a new rule of law, but sought justification in principles announced and applied in decided cases to which reference was made, among them Lynch v. Nurdin, 1 Q. B. 29, 41 E. C. L. 422. The facts of that case were that the defendant's servant left a horse and cart unattended in the street. The plaintiff, a child of tender years, climbed upon the cart in play. Another child struck the horse, causing it to start abruptly, whereby the plaintiff was thrown to the ground and injured. The defendant was held liable, though no stress was laid upon the fact that the horse and cart were in a public street. Upon the question of negligence Chief Justice Denman said:

"For if I am guilty of negligence in leaving anything dangerous in a place where I know it to be extremely probable that some other person will unjustifiably set it in motion to the injury of a third, and if that injury should be so brought about, I presume that the sufferer might have redress by action against both or either of the two, but unquestionably against the first."

And, disposing of the contention that the negligence of the plaintiff in mounting the cart and so committing a trespass had contributed to the injury, he observed:

"The answer is that, supposing that fact ascertained by the jury, but to this extent: That it merely indulged the natural instinct of a child in amusing himself with the empty cart and deserted horse, then we think that the defendant cannot be permitted to avail himself of that fact. The most blamable carelessness of his servant having tempted the child, he ought not to reproach the child with yielding to that temptation. He has been the real and only cause of the mischief."

Though in the Stout Case particular emphasis was not laid upon the peculiar attractiveness of the turntable, and the foundation principle upon which liability was made to depend was not sharply defined, the language employed and the references given seem to require the conclusion that the attractiveness of the machine was deemed to be an essential element, and that the theory of implied invitation must have prompted the conclusion reached. The Stout Case was decided in 1873. Later a case presenting substantially the same facts came before the Supreme Court of Minnesota (Keffe v. Milwaukee, etc., Ry. Co., above), and the rule of liability was there made to rest upon the theory of implied invitation. Among other things the court said:

"The defendant therefore knew that by leaving this turntable unfastened and unguarded, it was not merely inviting young children to come upon the turntable, but was holding out an allurement, which, acting upon the natural instincts by which such children are controlled, drew them by those instincts into a hidden danger; and having thus knowingly allured them into a place of danger, without their fault (for it cannot blame them for not resisting the temptation it has set before them), it was bound to use care to protect them from the danger into which they were thus led, and from which they could not be expected to protect themselves."

In his work on Torts, Judge Cooley referred approvingly to the decision in the Keffe Case, and under the title "Invasion of Rights in Real Property" said:

"Every retail dealer

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