O'Malley v. St. Paul, M. & M. Ry. Co.

Citation43 Minn. 289,45 N.W. 440
PartiesO'MALLEY v ST. PAUL, M. & M. RY. CO.
Decision Date16 May 1890
CourtSupreme Court of Minnesota (US)

OPINION TEXT STARTS HERE

(Syllabus by the Court.)

1. Evidence held sufficient to sustain the verdict.

2. The owner of any machine which he knows to be dangerous to children too young to know the danger, and of too immature judgment or discretion to control their natural instinct to amuse themselves with anything that may attract them as a plaything, and which he knows or ought to know may attract them, and who knows it is so placed that it does attract them to play with it, is under a duty, as to such children, to exercise the degree of care which an ordinarily prudent person would use to prevent its injuring them.

3. What that degree of care requires him to do is ordinarily a question for a jury.

4. While, in the case of its turn-tables and trucks standing on its tracks, by playing with which such children are injured, it is competent for a railroad company, in order to show that it exercised due care, to prove that it secured the turn-tables and trucks in the way customary with all railroad companies, such proof is not conclusive that due care was exercised. DICKINSON and COLLINS, JJ., dissenting.

5. Defendant, sued for injuries to a child through its negligence, denied, in its answer, the negligence charged, and alleged contributory negligence of the child and others who accompanied him. Held, this limited its right to prove contributory negligence to that pleaded, so that it could not prove negligence of the child's mother in allowing him to go upon defendant's grounds.

6. Other unimportant assignments of error disposed of.

Appeal from district court, Stevens county; BROWN, Judge.

M. D. Grover and J. W. Mason, for appellant.

Spooner & Spooner, for respondent.

GILFILLAN, C. J.

This is an action by an administratrix to recover for an injury causing the death of the intestate, through the negligence of the defendant. Upon the trial there was no substantial conflict in the evidence as to the material facts in the case. The uncontradicted evidence may be said to establish the following facts: The railroad of defendant runs through the village of Morris, in this state. Upon one of the blocks of that village are located several of defendant's tracks, running through the block, its cattle-yard, elevator, coal-sheds, a shop for repairs, a turn-table, and, shortly before the accident, a round-house, but which had been burned down. The turn-table was near the center of the block, being 422 feet from the street bounding the block on the north, 578 feet from the street bounding it on the south, 225 feet from that bounding it on the east, and 125 feet from that bounding it on the west. On the north side two tracks, running north and south, ran to the turn-table; on the south side, one track running in nearly the same direction, and, connecting with the main track, runs to the turn-table. On one of the tracks running to the turn-table stood several sets of car-wheels, with the axles. It seems to have been customary with defendant, for a considerable time before the accident, to leave car-wheels standing at that place. The track on which they stood had a descending grade towards the turn-table. The grounds were not inclosed, so that they appear to have been easily accessible to boys, and boys of all ages seem to have been accustomed to seek them for the purpose of amusing themselves with the turn-table and the wheels, by revolving the one and setting the other in motion along the track. The defendant knew this, and had instructed its employes at work upon and about the grounds to drive the boys away whenever they came, and they had generally, though not always, done so, whenever they saw the boys there. The turn-table, when not in use, was fastened with an iron latch let down into a socket. One of the witnesses testified that any child, a boy of five or six years old, could raise out the latch. The wheels were fastened to prevent them rolling with a chip or block, sometimes with a tie or piece of timber At the time of the accident in question three boys, two about nine years old each, and the deceased about six years old, went upon the grounds, removed the chip or block put to fasten one set of wheels, and put them in motion towards the turn-table. Deceased placed himself in front of the wheels, endeavoring to stop them, but they pushed him back, so that he was caught between one wheel and one of the timbers of the turntable, and crushed, so that he died not long after. The turn-table was partly turned round, and must therefore have been unfastened. It may be taken as established by the evidence that the methods adopted for fastening the turn-table and the wheels were those ordinarily used by railroad companies.

The case is, in its main features, nearly analogous to Keffe v. Railway Co., 21 Minn. 207. The principal difference in the facts of the two cases is that in that case the turn-table was left unfastened, while in this, as the jury might from the evidence have found, though the turn-table was usually kept fastened, and perhaps was fastened, on this occasion, and though the wheels were undoubtedly fastened, the fastenings were insufficient to prevent children, who come within the protection of the rule in that case, from easily removing them. The difference is not such as necessarily to take the case out of the rule; for if one who has on his own premises a dangerous machine, which he knows to be accessible to and resorted to by children of too tender years to know the danger, and of too immature judgment or discretion to control the natural instinct of a child to amuse itself with anything that may attract it as a plaything, is under a duty to exercise care to prevent injury to such a child, the fact that he uses some care is not of itself sufficient to absolve him from liability. The care he must exercise is that which an ordinarily prudent person would, under similar circumstances, use to prevent injury to such children. Whether in any particular case such degree of care...

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