Ryan v. Towar

• Decision Date: 22 October 1901
• Citation: 128 Mich. 463,87 N.W. 644
• Court: Michigan Supreme Court
• Parties: RYAN v. TOWAR et al.

87 N.W. 644

128 Mich. 463

RYAN v. TOWAR et al.

Supreme Court of Michigan

October 22, 1901

Error to circuit court, Marquette county; John W. Stone, Judge.

Action by Mary Ryan, by next friend, against Edgar H. Towar and others, defendants. From a judgment in favor of some of defendants, plaintiff brings error. Affirmed.

Montgomery C.J., and Moore, J., dissenting.

T. J. Dundon (E. J. Mapes and J. L. Heffernan, of counsel), for appellant.

Clark &amp Pearl, for appellee.

HOOKER J.

The Bice Manufacturing Company is an existing corporation, which formerly carried on a manufacturing business at Marquette. Its plant has been shut down for some years. Among other structures, it owned a small pump house, located upon ground owned by a railroad company, under an arrangement between them. In the house was a small overshot water wheel. The plaintiff, a girl between 12 and 13 years of age, was in the habit of passing this pump house on the way to school, with her brothers and sisters; going across lots through the field, because it was nearer. For some time previous to the time of the accident through which plaintiff received her injury, a hole existed in the stone wall of the house inclosing the wheel, through which children went to play on the wheel. What evidence there is on the subject justifies the inference that it was made by the children, and from time to time enlarged, by tearing out the stone of which the wall was built, for the purpose of entry to the wheel. On the day in question the brothers of plaintiff on their way from school crawled through this hole, and, mounting the wheel, were able by their weight to turn the wheel part way round and back. A younger sister, aged 8 years, got caught between the wheel and the wheel pit. The plaintiff heard her screams, and went through the hole to her succor, and aided in rescuing her, and was herself injured. Suit was brought against the corporation and two of its directors, and the negligence alleged was in permitting the wheel to remain there, accessible to children. The court directed a verdict in favor of the directors, and allowed the jury to determine the liability of the corporation, against which they rendered a verdict for $5,000. From a judgment in favor of the directors, the plaintiff has appealed. The only error assigned is the direction to return a verdict in favor of the directors.

The testimony shows that the buildings of the Bice Manufacturing Company were upon land owned by the railroad company, and that such land, together with the railroad, consisting of several tracks, was fenced. The plaintiff was not shown to have been invited upon the premises, but there is testimony from which the jury might reasonably conclude that children were in the habit of crossing the land of the defendant company and the railroad, and that neither company took steps to prevent it, further than to keep up the fences. It is contended that this amounted to an invitation or license, but we think not. Mere toleration of a trespass does not alone constitute a license even, certainly not an invitation. Thomp. Neg. (2d Ed.) � 1050, note. The pedestrians who insist upon risking their lives by making a footpath of a railroad track, and others who habitually shorten distances by making footpaths across the corners of village lots are none the less trespassers because the owners do not choose to resent such intrusion, and be to the expense and trouble of taking effective measures to prevent it. There is no more lawless class than children, and none more annoyingly resent an attempt to prevent their trespasses. The average citizen has learned that the surest way to be overrun by children is to give them to understand that their presence is distasteful. The consequence is that they roam at will over private premises, and as a rule this is tolerated so long as no damage is done. The remedy which the law affords for the trifling trespasses of children is inadequate. No one ever thinks of suing them, and to attempt to remove a crowd of boys from private premises by gently laying on of hands, and using no more force than necessary to put them off, would be a roaring farce, with all honors to the juveniles. For a corporation with an empty treasury, and overwhelmed with debt, to be required to be to the expense of preventing children from going across its lots to school, lest it be said that it invited and licensed them to do so, is to our minds an unreasonable proposition. As to this question of license or invitation, there is no difference between children and adults. In the case of Sturgis v. Railway Co., 72 Mich. 619, 40 N.W. 914, Mr. Justice Campbell said, 'It is impracticable to keep off trespassers from an open track, and all who go upon it do so on their own risk of such damages as are incident directly to such use.' See, also, O'Neil v. Railway Co., 101 Mich. 437, 59 N.W. 836. In Clark v. Railroad Co., 113 Mich. 24, 71 N.W. 327, 67 Am. St. Rep. 442, it was contended that a common practice of crossing a railway, of 30 years' duration, established an easement or a license or invitation which made it incumbent upon the company to keep the premises free from obstructions, such as a semaphore wire along and a few inches above the surface of the ground. It was held that it proved neither, and that those who crossed were technical trespassers. Numerous authorities were cited, and the question cannot be considered an open one in this state. It is a general and nearly uniform rule that there is no duty imposed upon the owner of premises to keep them in a suitable condition for those who come there for their own convenience merely, without the invitation of the owner. The origin of the alleged modern doctrine may be said to practically rest upon what are called the 'Turntable Cases,' the first of which was the case of Railroad Co. v. Stout, 17 Wall. 657, 21 L.Ed. 745. The opinion was written by Mr. Justice Hunt in the year 1873. A child of 6 years of age was hurt while playing with others upon a turntable, by getting its feet caught between the ends of the rail. The turntable was in a remote place, not far from a public highway, on ground belonging to the company. The trial court charged the jury 'that, to maintain the action, it must appear * * * that it was a dangerous machine,--one which, if unguarded or unlocked, would be likely to cause injury to children; * * * that the jury were to consider whether, situated as it was, as the defendants' property, in a small town, somewhat remote from habitations, there was negligence in not anticipating that injury might occur if it was left unlocked or unguarded; that if they did not have reason to anticipate that children would be likely to resort to it, or that they would be likely to be injured if they did resort to it, then there was no negligence.' The only question in the case was whether the child was a trespasser, and for that reason could not recover. This case practically laid down the rule 'that a railroad company might be liable to trespassers for injuries resulting from its failure to construct, locate, manage, and maintain its turntable with that care and attention to prevent accidents which prudent and careful men ordinarily bestow'; and it held that while 'the evidence was not strong, and the negligence was slight,' the court was 'not able to say that there was not evidence sufficient to justify a verdict,' and that the charge was sound.

Four cases are cited as precedents for the proposition that a trespasser is entitled to demand from a landowner ordinary care in the use, condition, and maintenance of structures upon his premises. The first was Lynch v. Nurdin, 1 Adol. & E. (N. S.) 29. In that case it was held that a child who, seeing a horse and cart unfastened in the street, got into the cart and was injured could maintain an action against the owner. The case seems to have gone off upon the questions of negligence and contributory negligence, and, no question of trespass being discussed, the inference is perhaps a proper one that it was found by the jury that the owner was negligent in leaving his horse loose in the public street, and that the child had shown as much prudence as could be expected of him. Not only was there apparently no consideration of this question, but later English cases are in conflict with that case, if it necessarily involved it. In Mangan v. Atterton, L. R. 1 Ex. Ch. 239, the defendant exposed for sale a machine in a public place, which might be set in motion by a passer-by. A boy 4 years old, by direction fof his brother, 7 years old, placed his finger in the machine while another boy was turning the handle which moved it, and his fingers were crushed. Branwell, J., said the action could not be maintained, and added: 'Suppose the machine was of delicate construction, and was injured by the boy; would he not be a trespasser? If so, it is impossible to hold the defendant.' In Hughes v. Macfie, 2 Hurl. & C. 744, a cellar grating was left standing against a wall in a street. A child playing with it was injured by its falling upon him. The court said that he could not recover, 'because he was voluntarily meddling, for no lawful purpose, with that which if left alone would not have hurt him. His being of tender years makes no difference.' It is noticeable that even the Lynch Case did not involve a trespass upon defendant's close, through it did perhaps involve a trespass to personal property. The next case cited as authority in Railroad Co. v. Stout is Birge v. Gardner, 19 Conn. 507, 50 Am. Dec. 261 . There a child was injured by the fall of a gate on the land of the defendant on or near the line of a private alley leading from a public highway back to several dwellings, in one of which the plaintiff lived, and...