Del., L. & W. R. Co. v. Reich

• Decision Date: 24 June 1898
• Court: New Jersey Supreme Court
• Parties: DELAWARE, L. & W. R. CO. v. REICH.

40 A. 682

61 N.J.L. 635

DELAWARE, L. & W. R. CO.

v. REICH.

Court of Errors and Appeals of New Jersey.

June 24, 1898.

(Syllabus by the Court.)

Error to circuit court, Essex county; Child, Judge.

Action by Caroline Reich against the Delaware, Lackawanna & Western Railroad Company for damages. Plaintiff had judgment, and defendant brings error. Reversed.

The defendant in error (who was the plaintiff below), on the 15th day of June, 1896, then being 13 years of age, had her foot crushed while in the act of rescuing her brother, a child of 6 years of age, who was playing on a turntable of the defendant company. It appeared in the case that the brother of the plaintiff, in company with several other little children, went to the company's turntable to play, and that she, deeming her brother to be in peril, went to the turntable, while the same was motionless, for the purpose of taking her brother off; and that while she was in the act of stepping with him from the turntable, it was turned by one of the other children, and her foot was thereby caught, and crushed so badly that it had to be amputated. It further appeared that the turntable was located in an open field on the land of the company, within 90 feet of a public street, and was entirely unguarded and unprotected. It also appeared that a path led across this field, passing the turntable within a few feet, and this path was used by the public without any hindrance or objection on the part of the railroad company. It also appeared that the turntable was frequented by children of all ages, who congregated there for the purpose of playing upon it The case was left to the jury on the theory that, if the turntable was a structure of a character to tempt children to meddle with It, and dangerous to them if they yielded to the temptation, the railroad company was chargeable with the duty of using reasonable care to protect them from harm, the negligent performance of which would render the company liable for injuries received. There was a verdict for the plaintiff.

Depue & Parker, for plaintiff in error.

Samuel Kalich, for defendant in error.

GUMMERE, J. (after stating the facts). This case was tried below, and has been argued here by counsel on both sides, on the theory that the legal position of the parties, so far as their respective rights and duties are concerned, is the same as if the plaintiff had been injured while herself playing upon the defendant company's turntable, in ignorance of the danger to which she was subjecting herself; and that such ignorance was due to the fact that she was not of an age to understand or appreciate the peril. For the purpose of disposing of the case, therefore, it will be assumed that this is the true situation of the parties, although it may well be considered that the plaintiff, in doing what she did, took upon herself all the risk of danger which was incident to her undertaking. The underlying question, upon the solution of which our decision must rest, is whether the owner of land who constructs or places upon it anything which, though necessary for its proper enjoyment, happens to be of a character which is attractive to children, and at the same time dangerous to them if they yield to the attraction, thereby becomes chargeable with the duty of using reasonable care to keep them off his premises, or to protect them if they enter; for it must be admitted that, unless such user creates a duty on the part of the landowner to protect the child who comes upon his premises, the neglect of which produces injury to the child, no liability rests upon him for such injury. If there is no duty in the case, there can be no negligence. There cannot be such a thing as the negligent performance of a nonexistent duty. It is universally acknowledged that no such duty rests upon the owner of lands with regard to adults, but in many of the decided cases a distinction is made between trespassers of mature years and children, and it is held that, as to the latter, the duty of protection exists. Most of the cases in which this doctrine has been enunciated have arisen on facts similar to those presented by the case now before us; that Is, in cases where children have been injured while playing upon turntables located upon the private property of railroad companies. Railroad Co. v. Stout, 17 Wall. 657, is the first of this line of cases. Keffe v. Railroad Co., 21 Minn. 207; Koons v. Railroad Co., 65 Mo. 592; Railroad Co. v. Fitzsimmons, 22 Kan. 686; Ferguson v. Railway Co., 75 Ga. 637; and Barrett v. Southern Pac. Co., 91 Cal. 296, 27 Pac. 660,—also support this doctrine, and ore. all of them, so-called "turntable cases." It is apparent, however, that, if the duty exists in the case of a railroad company having a dangerous attraction upon its land, it exists equally in the case of a private landowner, who, for the purpose of carrying on his business properly, maintains upon his premises an attraction of a character dangerous to children. And, in fact, numerous cases may be found in the books where "dangerous attractions" other than turntables, placed upon the premises of the individual owner, for their more complete beneficial user, have been held to charge him with the duty of protecting children who are allured thereby. Siddall v. Jansen, 168 Ill. 43, 48 N. E. 191; Birge v. Gardner, 19 Conn. 507; Whirley v. Whiteman, 1 Head, 610; Powers v. Harlow, 53 Mich. 507, 19 N. W. 257; and Bransom's Adm'r v. Labrot, 81 Ky. 638,—are cases of this character. But, although this doctrine has received the support of many courts of high distinction, it has been absolutely repudiated by other courts, whose decisions rank equally high. The cases of Frost v. Railroad Co., 64 N. H. 220, 9 Atl. 790, Daniels v. Railroad Co., 154 Mass. 349, 28 N. E. 283, and Walsh v. Railroad Co., 145 N. Y. 301, 39 N. E. 1068, all declare that no distinction exists between adults and infants when entering uninvited upon lands of another, with relation to the duty which the owner or occupier of such lands owes to them. The same view is expressed by the supreme court of this state in the case of Turess v. Railroad Co., 40 Atl. 614, in an opinion by Magie, C. J., which has lately been promulgated, in which the whole subject is carefully and exhaustively considered. This court, however, has, up to the present time, never been called upon to decide the question, and we are free to adopt either the view taken by the United States supreme court in Railroad Co. v. Stout, supra, and the cases which have followed it, or that taken by the courts of Massachusetts, New Hampshire, and New York, as well as by our supreme court, according as the one or the other shall the more commend itself to us.

It must be conceded, I think, that the rule which imposes liability upon the landowner is a hard one, so far as he is concerned, in this respect; that, no matter how carefully he may endeavor to protect himself by discharging the duty which the law places upon him, the probability of his failure is great. When contemplating the alteration of his land from the condition in which nature left it for the purpose of obtaining a more beneficial user therefrom, he must first consider whether the alteration will render it attractive to children of tender years, and, if so, whether they will be subjected to danger if they succumb to the attraction. If he honestly concludes that the change will not operate to attract children, and that, therefore, although it may make his property dangerous, he is under no obligation to provide for their safety, or if he concludes that, although the alteration may render his property attractive to children, they will not incur danger by coming upon it, and for either of these reasons fails to take precautions for their safety, it will be for the jury to say whether he must answer for the result if injury to a child follows upon his omission; and their verdict will depend upon whether, in their opinion, he had reasonable ground for his conclusion. So, too, if he appreciates that the change which he proposes to make will render his premises dangerously attractive to children, and takes precautions to exclude them therefrom, it is still possible that they may elude his vigilance, and receive hurt while trespassing; and when that occurs it at once becomes a question for the jury to say whether or not the injury was the result of the want of due care on the part of the landowner in affording that protection which his duty required. What the conclusion of the jury would be in any given case, of course no one can tell. The fact, however, is suggestive that in every reported case, so far as I have examined them (and I have examined many), where...