Indiana Harbor Belt R. Co. v. Jones
| Decision Date | 07 May 1942 |
| Docket Number | 27693. |
| Citation | 41 N.E.2d 361,220 Ind. 139 |
| Parties | INDIANA HARBOR BELT R. CO. v. JONES. |
| Court | Indiana Supreme Court |
Appeal from Circuit Court, White County; Russell Gordon judge.
Abraham Halleck and Charles A. Halleck, both of Rensselaer, for appellant.
O Warren Harvey, of Gary, for appellee.
Willie Jones, eight years and eight months old, was killed by the falling of a heavy door while playing in an empty freight car standing on appellant's switch track. His mother recovered verdict and judgment in an action for wrongful death and in this appeal two questions are presented, the sufficiency of the complaint to withstand demurrer for want of facts and the sufficiency of the evidence to sustain the verdict. The complaint was in two paragraphs. The first proceeding on the theory of attractive nuisance, went out on demurrer leaving only the second paragraph upon which the cause was tried.
This paragraph charges in substance that within four blocks of decedent's residence in East Chicago appellant owns two switch tracks with large vacant space between them where children including decedent with the knowledge, acquiescence and consent of appellant were accustomed to play and climb upon gondola type cars standing upon the tracks, that between seven and eight o'clock p. m., August 22, 1936, decedent and other children in their play climbed on one of such empty cars and were playing on the floor when without warning the heavy door at the end of the car fell and killed decedent. Four acts of negligence are charged, failure to fence the tracks, to put up warning signs, or to have a watchman, each of which is alleged to have been a reasonable precaution to keep the children away from the tracks and cars, and failure to lock the door so that it would not fall.
A railroad company owes no duty to children living in the vicinity of its switch yards to erect fences or other barriers to prevent their trespassing. Baltimore & Ohio Southwestern Ry. Co. v. Bradford, 1898, 20 Ind.App. 348, 49 N.E. 388, 67 Am.St.Rep. 252; Colby v. Chicago Junction Ry. Co., 1920, 216 Ill.App. 315; Davis, Director General, v. Keller, 1926, 85 Ind.App. 9, 150 N.E. 70. Nor is it obligated to have a watchman to keep children off its right of way and cars. Chicago & A. R. Co. v. McLaughlin, 1868, 47 Ill. 265; Haesley v. Winona & St. Peter R. Co., 1891, 46 Minn. 233, 48 N.W. 1023, 24 Am.St.Rep. 220. Signs are not required. The tracks themselves are a danger warning. So far as the complaint discloses, he could not get to the so-called playground except by crossing a track.
If this complaint states a cause of action, the liability must be predicated upon the allegation of appellant's knowledge of and consent to the presence of children on its tracks and cars and particularly the presence of Willie Jones on the car whose falling door caused his death. He was not invited there. Such a car is not an invitation to children. Colby v. Chicago Junction Ry. Co., supra; Smith v. Hines, Director General, 1925, 212 Ky. 30, 278 S.W. 142, 45 A.L.R. 980. Other cases are collected in notes in Ann.Cas.1912D, 916 and 14 Ind. L.J. 376. While as indicated in Cannon v. Cleveland, etc., R. Co., 1901, 157 Ind. 682, 685, 62 N.E. 8, the allegation of 'consent' has no broader significance than acquiescence, that is, knowledge without objection, we think it negatives the idea that decedent was a trespasser. He is best described as a licensee by permission. See Cleveland, etc., R. Co. v. Means, 1914, 59 Ind.App. 383, 392, 104 N.E. 785, 788, 108 N.E. 375. The question is whether a railroad company owes a duty to such a person to lock the door of its empty car to prevent his injury. No facts as to construction or maintenance of the door or lock appear except 'that at each end of the said car there is a door weighing approximately One Thousand (1,000) pounds which said doors are held in place against the end of the car by a large hook; that the said defendant company, its agents, servants and employees had negligently failed to hook the door to the car at the end where the said Willie Jones and the other children were playing.'
Appellant relies chiefly upon the Cannon and Means cases, supra, appellee upon Lewis v. Cleveland, etc., R. Co., 1908, 42 Ind.App. 337, 84 N.E. 23 and Knapp v. Doll, 1913, 180 Ind. 526, 103 N.E. 385. We find none of them particularly helpful except for the discussion of principles in the Means case, supra. We think the note in 14 Ind.L.J. 376 correctly stated 'the real basis upon which the child was there permitted recovery, i. e., that the probable presence of children upon property where a dangerous activity is being carried on, imposes a duty of ordinary care upon the owner of such property to anticipate their presence by keeping a look-out for them.'
This duty is more apparent where there is 'activity,' that is, where a car is being moved or machinery is being stated which a child is not likely to anticipate. We do not think the duty is confined to children non sui juris, if by such are meant those under seven years of age. But it may also apply to older children whose presence the defendant has reason to expect. In such situations there may be complications arising from the question of comtributory negligence which need not here be considered. We are now concerned only with the duty of the one who owns or controls the operation of the property upon or by which the injury occurs. If he is bound to know of the presence of children he must also know from common experience that they are frequently heedless of danger, and he ought not start in motion something that is likely to cause their injury. Some courts including our own have therefore distinguished between 'active' and 'passive' negligence. But we see no sound basis for the distinction. Negligence may be in acts committed or omitted. And if the probable presence of the children raises a duty to them of ordinary care, this may be violated before the children arrive upon the premises, by leaving things undone which ought to have been done in anticipation of their coming. This may be 'passive' but nevertheless it is negligence.
Whatever duty exists is not absolute but relative. The Means case, supra, at page 407 of 59 Ind.App., at page 793 of 104 N.E., recognizes that against the child's interest must be balanced the social good. This has been thought to play human against property interests. But, as said in the New York case quoted, Loomis v. Terry, 17 Wend. 496, 31 Am.Dec. 306, 'the business of life must go forward.' A railroad company is not bound to keep its property free from every hazard. Its business must go on. The Nebraska court, Chicago, etc., R. Co. v. Krayenbuhl, 65 Neb. 889, 91 N.W. 880, 59 L.R.A. 920, in the quotation on page 408 of 59 Ind.App., page 794 of 104 N.E. reaches a sound conclusion that 'in the determination of the question of...
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