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

• Decision Date: 09 February 1921
• Docket Number: 152,153
• Citation: 271 F. 419
• Court: U.S. Court of Appeals — Second Circuit
• Parties: NEW YORK, N.H. & H.R. CO. v. FRUCHTER (two cases).

271 F. 419

NEW YORK, N.H. & H.R. CO. v. FRUCHTER (two cases).

Nos. 152, 153

United States Court of Appeals, Second Circuit.

February 9, 1921

[Copyrighted Material Omitted]

John M Gibbons, of New York City (James W. Carpenter, of New Haven Conn., F. J. Rock, of New York City, and H. M. French, of New Haven, Conn., of counsel), for plaintiff in error.

Leon Sanders, of New York City (Harold R. Medina, George M. Curtis, Jr., and Jacob Zelenko, all of New York City, of counsel), for defendants in error.

Defendant below (hereinafter called the Railroad Company) maintains a well-known transportation system leading out of New York City, and its lines within the city limits and further are operated by an overhead electrical system. At 149th street is a bridge or viaduct belonging to the city of New York, constructed in 1908, and crossing the sunken tracks of the Railroad Company. It is 270 feet long and 54 feet wide. This city bridge is of standard construction, and is so formed of posts, beams and girders, strengthened and connected by trellis or lattice work, that it is quite possible for active men or boys to climb to the uppermost chords of the bridge some 24 feet above the roadway.

Since 1912 the Railroad Company, with permission from the city, has carried its wires over the bridge resting on porcelain insulators which are fastened to cross-arms, which in turn are attached to an upright structure of steel, itself affixed to the top girders or chords of the bridge. This construction is also standard. On June 9, 1916, David Fruchter was a lad whose eighth birthday would occur in the following month. He lived in the general neighborhood of the bridge, which is a rather crowded region abounding with small boys. He had seen (according to his own statement) other boys playing upon these girders a few days before, and he seems to have been aware that to do likewise within sight of a policeman or railroad worker was not wholly safe. On the day mentioned he found himself unwatched, and climbed to the top girder of the bridge (as he says) to get a pigeon's nest. He then saw a pigeon on one of defendant's wires, and so climbed up the upright structure aforesaid, reached out for the pigeon, and when it flew away brought his hand in contact with the live wire, causing the personal injuries to recover for which he brought suit.

Over motions duly made to dismiss or direct, the Court thus submitted the matter to the jury. Both plaintiffs had verdicts and the Railroad Company took these writs.

Before WARD, HOUGH, and MANTON, Circuit Judges.

HOUGH Circuit Judge (after stating the facts as above).

It is too obvious to need comment that the court below treated the claim in suit as covered by what are known as the 'attractive nuisance,' 'lure,' or 'trap' cases.

Since, so far as the courts of the United States are concerned, these cases are all assumed to rest on Railroad Co. v. Stout, 17 Wall. 657, 21 L.Ed. 745, the word 'nuisance' is inappropriate. A nuisance is that which 'unlawfully worketh hurt, inconvenience, or damage,' and neither the turntable of the Stout Case nor the electric wire here to be considered was a nuisance; both were lawful enough. But many a lawful thing may be so negligently managed, handled, or maintained as to give rise to causes of action in tort. The true doctrine is that any composition of matter which lures or attracts the confiding ignorance of childhood to its own harm must be safeguarded as circumstances require, and of course the circumstances vary in almost every instance.

We are first seriously requested to abandon the doctrine of the Stout Case, because it is said to have been rejected by the courts of the state of New York. The request is a large one, considering how fully, after elaborate investigation, the ruling was restated in Union Pacific, etc., Co. v. McDonald, 152 U.S. 262, 279, 14 Sup.Ct. 619, 38 L.Ed. 434, and our own acknowledgment of its binding effect recently made in Heller v. New York, etc., Co., 265 F. 192.

But if we wished to depart from the doctrine in question we could not, for the matter is one of general law, and we are bound (in the absence of any statutory change by competent authority) by the decisions of the Supreme Court as reviewed at some length in Baltimore & Ohio R.R. Co. v....