Lewis v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company
| Decision Date | 17 March 1908 |
| Docket Number | 6,221 |
| Citation | 84 N.E. 23,42 Ind.App. 337 |
| Court | Indiana Appellate Court |
| Parties | LEWIS, BY NEXT FRIEND, v. CLEVELAND, CINCINNATI, CHICAGO & ST. LOUIS RAILWAY COMPANY |
Rehearing denied June 2, 1908.
Transfer denied October 8, 1908.
From Dearborn Circuit Court; George E. Downey, Judge.
Action by Jacob Walter Lewis, by his next friend, John E. Lewis against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for defendant, plaintiff appeals.
Reversed.
McMullen & McMullens, for appellant.
L. J. Hackney, Frank L. Littleton and Roberts & Cravens, for appellee.
The court sustained a demurrer, for want of facts, to the amended complaint in this cause, and, appellant refusing to plead further, judgment was rendered against him for costs.
The error relied upon for reversal is the sustaining of appellee's demurrer to said amended complaint.
After mentioning the parties, the amended complaint avers, in substance, that on February 11, 1900, the defendant company maintained and operated, and had for more than ten years prior thereto maintained and operated, near the city of Aurora, as a part of its railroad, a turntable which was used by it, and had been used for many years, for the purpose of turning its engines for the proper operation of its railroad; that said turntable was constructed as follows: (The construction and manner of operation of the turntable is described); that when the turntable was put in motion it took a very considerable force to stop it, because of its weight and the momentum acquired; that it was situated within twenty-five feet of the corporation line of said city, on an unenclosed lot, within one hundred feet of one of the much traveled streets of said city, and at a point much frequented by the citizens thereof, including children, which facts were well known to the defendant; that on said February 11 defendant had negligently left unattended, unfastened and unenclosed said turntable, which was a dangerous machine and peculiarly attractive to children; that for five years prior to said date there had been no fastening to prevent the turning of the table or to hold it in place, no guard or protection around or upon the table, nothing to prevent any person from getting on the table, and no visible separation of the railroad ground and the adjoining property, both being unenclosed; that said turntable was, on said date, and had been for five years, peculiarly attractive to children; that a very small child could revolve the same, similarly to a "flying Dutchman," or a "merry-go-round," and defendant knew that children were attracted by said turntable, and almost daily congregated and rode thereon; that the turntable was near a public high-way of said city, and was within fifty yards of the Ohio river, on one side, and on the other side was located a public ball ground; that the water's edge of the Ohio river was used by the children of the city for fishing and swimming, and as they went from the river to the ball ground the turntable was in the line of travel; that the facts that children and adults went upon said unenclosed lot and to the ball ground and river were known to appellee, as was the fact that children frequently played on the turntable, and would turn it round and ride upon it; that at slight expense the turntable could have been locked or fastened, so that it could not be turned when not in use, without materially interfering with its usefulness; that on said day the appellant, who was less than six years of age, with other children and companions, began to turn the turntable, and while it was in motion he jumped upon it and rode, being unmindful of danger, owing to his age, and was carried against the switch track and caught between the switch track and the turntable, sustaining the injuries complained of, which injuries were caused solely by the negligence of the appellee, without the fault of appellant, to his damage, etc.
The courts are not in harmony in their views of turntable cases. There are decisions holding that a child who was injured while trespassing on unsafe premises cannot recover damages of the owner of the premises, by reason of their unsafe condition, unless the landowner is guilty of such negligence as amounts to wanton injury. 7 Thompson Negligence (White's Supp.), § 1026. Under this rule the appellee would not be liable, though it induced the child to enter the premises and encounter the danger by reason of its attractiveness to his immature mind. The foregoing rule has not been followed in this State. The courts of Indiana do not regard a child of tender years, attracted by something on the premises which appeals to his curiosity, as a trespasser. "What an express invitation would be to an adult, the...
To continue reading
Request your trial
-
Lewis v. Cleveland, C., C. & St. L. Ry. Co.
... ... by Jacob Walter Lewis against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment ... ...