Riggle v. Lens

• Citation: 71 Or. 125,142 P. 346
• Parties: RIGGLE v. LENS.
• Decision Date: 09 June 1914
• Court: Supreme Court of Oregon

142 P. 346

71 Or. 125

RIGGLE v. LENS.

Supreme Court of Oregon

June 9, 1914

In Banc.

Appeal from Circuit Court, Umatilla County; Gilbert W. Phelps Judge.

Action by George W. Riggle against I. C. Lens. From a judgment for defendant, plaintiff appeals. Affirmed.

Moore J., dissenting.

Will M Peterson, of Pendleton, for appellant. Raley & Raley, of Pendleton, for respondent.

EAKIN J.

Plaintiff brings this action to recover damages for the death of his son Paul, an infant of five years of age, by drowning in the Byer's mill race. The complaint charges that the mill race was situated in the city of Pendleton and owned by defendant, being located near public streets or highways that it was from three to eight feet deep; that it was sometimes resorted to by children for amusement, and was not protected by fence or guard. Paul Riggle, while playing upon the banks thereof, fell in and was drowned; and plaintiff seeks to recover for the loss of Paul's services during his minority. A demurrer thereto was sustained, and, from a judgment thereon, plaintiff appeals. The question is whether defendant was guilty of negligence in leaving the race unprotected against small children; plaintiff contending that the defendant is liable for the death of the infant by drowning therein under the turntable doctrine, the race being an attractive nuisance constituting a lure to children. Although the question is one of first impression in this state, it is not new to the courts of this country. It is discussed in many decisions by nearly all the courts of last resort, and they do not all arrive at the same result, differing principally on account of the difference in the facts involved. The cases holding in regard to the liability of the owner of the object attractive to children are to some extent collated on the one side by the plaintiff and upon the other by the defendant, as well as in some of the annotated cases on the subject.

The cases of Sioux City, etc., R. Co. v. Stout, 17 Wall. 657, 21 L.Ed. 745, and Union P. R. Co. v. McDonald, 152 U.S. 262, 14 S.Ct. 619, 38 L.Ed. 434, seem to be recognized by subsequent decisions as authoritative and final upon the points decided; at least they are very extensively quoted and followed.

Sullivan v. Huidekoper, 27 App. Cas. (D. C.) 154, 5 L. R. A. (N. S.) 263, Duell, J., annotated in 7 Ann. Cas. 196, is a case in which there is a full discussion of the law upon that question and also a review of many cases, in which a child of tender years was drowned in a pool of water upon the property of the defendant, caused by a street grade. The court says:

"We deem it immaterial whether the pond be a natural or an artificial one."

This is not a case where the injury was claimed by reason of negligence in not properly guarding a concealed, dangerous condition, as were the Stout and McDonald Cases.

Bjork v. Tacoma, 76 Wash. 225, 135 P. 1006, 48 L. R. A. (N. S.) 331, was a case of unguarded, concealed danger, and comes directly within the two former cases, as are also Brinkley Car Co. v. Cooper, 60 Ark. 545, 31 S.W. 154, 46 Am. St. Rep. 216, and Kinchlow v. Midland Elevator Co., 57 Kan. 374, 46 P. 703. It is considered to be the primary duty of the parent to guard or protect the small child against patent and unconcealed dangers. Sullivan v. Huidekoper, supra; Wheeling, etc., Ry. Co. v. Harvey, 77 Ohio St. 235, 83 N.E. 66, 19 L. R. A. (N. S.) 1136, 122 Am. St. Rep. 503, 11 Ann. Cas. 981.

In the case of McCabe v. American Woolen Mills Co. (C. C.) 124 F. 283, the court recognizes the principle announced in the Stout and McDonald Cases, supra, but distinguishes them from a case of an open, visible ditch or canal, which is similar to a natural stream. In the Sullivan Case it is said that:

"The doctrine of the turntable cases is an exception to the rule of nonliability of a landowner for accidents from visible causes to trespassers on his premises."

Stendal v. Boyd, 73 Minn. 53, 75 N.W. 735, 42 L. R. A. 288, 72 Am. St. Rep. 597, adopts the same language, where it is said that, with the exception of Pekin v. McMahon, 154 Ill. 141, 39 N.E. 484, 27 L. R. A. 206, 45 Am. St. Rep. 114, the courts of last resort, including those which recognize the doctrine of the turntable cases, have uniformly denied the liability of the landowner for injuries to trespassing children by reason of open and unguarded ponds or excavations upon his premises. That state had previously adhered to the doctrine of the turntable and attractive nuisance cases, and the court had modified its former position on that question, holding that the turntable doctrine is an exception to the rule of nonliability of a landowner for accidents from visible causes to a trespasser on his premises, which is followed in Mattson v. Minnesota & North Wisconsin R. Co., 95 Minn. 477, 104 N.W. 443, 70 L. R. A. 503, 111 Am. St. Rep. 483, 5 Ann. Cas. 498.

In Erickson v. Great Northern R. Co., 82 Minn. 60, 84 N.W. 462, 51 L. R. A. 645, 83 Am. St. Rep. 410, the Chief Justice says the manifest trend of all the decisions of this court is to limit its application to attractive and dangerous machinery and to other similar cases where the danger is latent, and that as a general rule the doctrine must be limited to those cases.

In an able article in 11 Harvard L. Rev. 349, 434, Judge Jeremiah Smith, in a review of the cases, reaches the conclusion that the turntable doctrine is not sound. This article is an able and exhaustive treatment of the subject, the cases pro and con being collated, at the conclusion of which the author says:

"Our conclusion, therefore, is that the law ought not to impose upon the landowner even qualified liability, so far as the condition of his premises is concerned, to children entering without permission, although 'attracted' by his method of making beneficial use of his premises."

The turntable doctrine is repudiated in Massachusetts in the McCabe Case, supra, and in Daniels v. N. Y., etc Ry. Co., 154 Mass. 349, 28 N.E. 283, 13 L. R. A. 248, 26 Am. St. Rep. 253. In the former Justice Putnam says that this doctrine is also repudiated in New Hampshire, and suggests that it is doubtful if it is recognized in any part of New England. He concludes by saying that the rule of the turntable and slack-pit cases should not be extended to cases of injuries to children by reason of open...