Heller v. New York, N.H. & H.R. Co.

• Court: U.S. Court of Appeals — Second Circuit
• Citation: Heller v. New York, N.H. & H.R. Co., 265 F. 192 (2nd Cir. 1920)
• Decision Date: 02 March 1920
• Docket Number: 125.
• Parties: HELLER v. NEW YORK, N.H. & H.R. CO.

265 F. 192

HELLER v. NEW YORK, N.H. & H.R. CO.

No. 125.

United States Court of Appeals, Second Circuit.

March 2, 1920

Olcott Bonynge, McManus & Ernst, of New York City (Terrence J McManus and E. L. Bourke, both of New York City, of counsel) for plaintiff in error.

John M Gibbons, of New York City, for defendant in error.

Before WARD, ROGERS, and HOUGH, Circuit Judges.

ROGERS Circuit Judge.

This action was brought to recover damages for negligently causing the death of the plaintiff's son, who was about 11 years of age. His death occurred on September 3, 1917. At the close of the case defendant moved to dismiss the complaint, or to direct a verdict for defendant. The motions were denied. The case was submitted to the jury; a verdict being returned in favor of defendant.

The plaintiff alleged that the defendant owned and maintained a certain electric feed wire for the purpose of conducting and supplying electricity for the operation of its railroad trains. This feed wire carried 11,000 volts, and paralleled defendant's tracks at the place where this accident happened in the borough of the Bronx, city of New York. The claim is that this feed wire, together with its surroundings and easy approach, were so negligently and insufficiently protected as to constitute such an invitation to children as the law terms a 'lure' or 'trap.'

The accident happened on defendant's premises, at a place where a bridge crossed defendant's tracks; the bridge being a public highway and about 22 feet above the tracks. The bridge structure rested upon the usual abutments, with sloping concrete walls running from the bridge base east and west, parallel with the tracks and the power wires which operated the defendant's trains. The power wires for construction reasons were placed comparatively close to the sloping abutments east and west of the bridge roadway. The boy was at play with two other boys in the immediate neighborhood of the bridge. At the east of the bridge was an embankment running down to a lot which ran parallel with the railroad tracks. Alongside of the tracks, and separating the lot from the tracks and extending up to the bridge, was a stone abutment, reaching the point where the bridge crossed the railroad tracks. The abutment ran at right angles to the bridge. A wire screen was over the abutment, and it extended up a number of feet, to where it connected with the bridge. At the top, and at a point parallel with the bridge as it ran along, and not covered by the wire screen, was an opening some 3 or 4 feet in dimensions; and right at the point where the wire fence connected with the bridge there was this hole, extending under the wire fence. There were a number of wires, including the feed wire, running under the bridge and over the tracks. The boy picked up a can, climbed up the abutment, then down into this hole under the screen, finally reached out, and touched with the tin can a heavily charged wire, and the contact with the can and the wire and his holding it resulted in the current being conducted into his body, and he fell over on the wire electrocuted.

Every unauthorized entry on another's property is a trespass and any person who makes such an entry is a trespasser. A trespasser is one who goes upon the premises of another without invitation, express or implied, and does so out of curiosity, or for his own purposes or convenience, and not in the performance of any duty to such owner. It is not necessary that one in making such an entry should have any unlawful intent. The plaintiff's intestate was on the defendant's property as a trespasser, unless circumstances, hereinafter mentioned, must be regarded as an invitation to enter. A child, even of tender years, may be a trespasser. Holbrook v. Aldrich, 168 Mass. 15, 46 N.E. 115, 36 L.R.A. 493, 60 Am.St.Rep. 364; Gillespie v. McGowan, 100 Pa. 144, 45 Am.Rep. 365; Thomas v. Chicago, etc., R. Co., 93 Iowa, 248, 61 N.W. 967. The mere fact that a trespasser is a child does not create or impose on the owner any duty to keep his premises safe, at least where there is nothing about the premises which is attractive to children. The only duty in such a case is that of avoiding willful or wanton injury. Rodgers v. Lees, 140 Pa. 475, 21 A. 399, 12 L.R.A. 216, 23 Am.St.Rep. 250; Hughes v. Boston, etc., R. Co., 71 N.H. 279, 51 A. 1070, 93 Am.St.Rep. 518; Mergenthaler v. Kirby, 79 Md. 182, 28 A. 1065, 47 Am.St.Rep. 371; Nolan v. New York, etc., R. Co., 53 Conn. 461, 4 A. 106; Delaware, etc., R. Co. v. Reich, 61 N.J.Law, 635, 40 A. 682, 41 L.R.A. 831, 68 Am.St.Rep. 727; Uthermohlen v. Boggs Run Co., 50 W.Va. 457, 40 S.E. 410, 55 L.R.A. 911, 88 Am.St.Rep. 884.

It has been held in England that if a child's own act directly brings the injury upon him, while the negligence of the defendant is only such as exposes the child to the possibility of injury, the latter cannot recover damages. Hughes v. Macfie, 2 Hurlst.etc., 744; Managan v. Atterton, L.R. 1 Ex. 239. These decisions, however, have been condemned in England. Clark v. Chambers, L.R.Q.B. Div. 327, 339. See Beven on Negligence (3d Ed.) pp. 161, 163, 166, 170. They are said to be opposed to the current of American cases. Shearman & Redfield on Negligence (6th Ed.) vol. 1, p. 183.

In the United States, in some jurisdictions, though not in all, the courts recognize a duty on the part of the owner of premises towards children not to attract or lure them into unsuspected danger or great bodily harm, by keeping thereon attractive machinery or dangerous instrumentalities in an exposed and unguarded condition. Where a child so enticed upon another's property has been injured by a dangerous machine or structure, which has been suffered to remain exposed upon the premises, the entry is not regarded in such jurisdictions as unlawful, and does not necessarily preclude a recovery of damages, if injury follows. It is there held that the attractiveness of the machine or structure amounts to an implied invitation to enter. This is known as the 'doctrine of the turntable cases.'

The leading case, announcing it, is that of Railroad Co. v. Stout, 17 Wall. 657, 21 L.Ed. 745. In that case the plaintiff, a child of tender years, was attracted to defendant's premises by a turntable on the railroad company's land. He was injured while playing with other children on the turntable, which was ordinarily held secure from movement by a heavy cast iron latch. This latch had been for some time broken, so that the table could be easily turned on its pivot by the children who played on and near it. Judge Dillon, in the court below, instructed the jury that if the railroad company had no reason to anticipate that children would be likely to resort to it, or that they would be likely to be injured if they did resort to it, there was no negligence. The pertinent part of the instruction may be found in the margin. ^[1]

The Supreme Court held that the case was properly submitted to the jury. And see Union Pacific Railroad Co. v. McDonald, 152 U.S. 262, 14 Sup.Ct. 619, 38 L.Ed. 434; Snare & Triest Co. v. Friedman, 169 F. 1, 94 C.C.A. 369, 40 L.R.A. (N.S.) 367; Chesko v. Delaware & Hudson Co., 218 F. 804, 134 C.C.A. 492; Callahan v. Eel River, etc., R. Co., 92 Cal. 89, 28 P. 104; Ferguson v. Columbus, etc., R. Co., 77 Ga. 102; Union Pacific R. Co. v. Dunden, 37 Kan. 1, 14 P. 501; Bransom's Adm'r v. Labrot, 81 Ky. 638, 50 Am.Rep. 193; Westerfield v. Levis, 43 La.Ann. 63, 9 So. 52; Gay v. Essex, etc., R. Co., 159 Mass. 238, 34 N.E. 186, 21 L.R.A. 448, 38 Am.St.Rep. 415; Powers v. Harlow, 53 Mich. 507, 19 N.W. 257, 51 Am.Rep. 154; O'Malley v. St. Paul, etc., R. Co., 43 Minn. 289, 45 N.W. 440; Baltimore, etc., R. Co. v. Schwindling, 101 Pa. 258, 47 Am.Rep. 706; Bridger v. Asheville, etc., R. Co., 25 S.C. 24.

In McAlpin v. Powell, 70 N.Y. 126, 26 Am.Rep. 555 (1877), Judge Miller, referring to Railroad Co. v. Stout, speaks disapprovingly of it and of the case of Keffe v. Milwaukee, etc., Ry. Co., 21 Minn. 209, 18 Am. Rep. 393, which followed it, saying:

'While we are not prepared to uphold them, it is enough to say that the facts are by no means analogous.'

He adds that a wide distinction exists between those cases and the one then before the court.

In the instant case the judge charged the jury at length upon the question as to the duty which the defendant owed to the plaintiff. That portion of the charge is found in the margin. ^[2] The jury was told that the deceased was a trespasser. In certain jurisdictions the deceased would not be a technical trespasser, if he came upon defendant's premises upon an implied invitation, because of alluring conditions. In those jurisdictions it would not be strictly accurate to tell the jury the deceased was a trespasser, and then immediately thereafter leave it to the jury to determine whether defendant had invited him to enter upon the premises by creating alluring conditions with a concealed danger or peril. After the judge had charged as stated in the margin, counsel for defendant asked him to charge 'that the only negligence that would make the defendant responsible would be willful, wanton, or reckless negligence. ' The court thereupon said

'I think I have in substance so charged. Of course, the negligence must be willful. If the conditions were such as I have described-- that is, if there was some lure or trap that was willfully or recklessly maintained there-- then the defendant company would have violated its duty. That is true. If not, it would not have violated its duty.'

The jury in the instant case was instructed to apply the rule of willful negligence as alone making defendant liable, whether the deceased was on the premises as a trespasser, or whether he was there upon invitation implied by law because...