Savannah, F. & W. Ry. Co. v. Beavers

• Decision Date: 21 May 1901
• Citation: 39 S.E. 82,113 Ga. 398
• Parties: SAVANNAH, F. & W. RY. CO. v. BEAVERS.
• Court: Georgia Supreme Court

39 S.E. 82

113 Ga. 398

SAVANNAH, F. & W. RY. CO. v. BEAVERS.

Supreme Court of Georgia

May 21, 1901

Syllabus by the Court.

One who makes an excavation upon his land is not bound to so guard it as to prevent injury to children who come upon it without his invitation, express or implied, but who are induced to do so merely by the alluring attractiveness of the excavation and its surroundings.

Error from superior court, Ware county, J. W. Bennet, Judge.

Action by A. A. Beavers against the Savannah, Florida & Western Railway Company. Judgment for plaintiff. Defendant brings error. Reversed.

Chisholm & Clay, for plaintiff in error.

Leon A Wilson, for defendant in error.

FISH J.

A. A Beavers obtained a verdict and judgment against the Savannah Florida & Western Railway Company for the death of his minor child, and, upon the defendant's motion for a new trial being overruled, it excepted. There was but little conflict in the evidence, and that in behalf of the plaintiff conduced to establish the following facts: The defendant railway company undertook to construct a water tank upon its premises. The work was temporarily suspended, and an excavation 12 feet square, about 7 feet deep, and containing about 4 or 5 feet of muddy water, concealing its depth, was left uncovered, and guarded only by piling placed around it, some 18 inches in height. Upon the sides of the excavation, and 2 feet from the surface, there was a ledge or sill, 5 by 10 inches. There was a ladder and a long-handled pump left in the excavation, the ladder extending to the top. Near by there was a tram road upon which there was a small fiat car, used for hauling away dirt taken from the hole. Eight and a half feet from the edge of the excavation, and along the outer line of the defendant's right of way, there ran a foot-path, much traveled by the public. Some 28 feet from the excavation there was a canal, along the banks of which there were berries and flowers, which children were accustomed to gather. There were no flowers nor berries immediately about the excavation. It did not appear that the officers of the defendant company knew that children frequented the locality. The foreman of the "gang," while making the excavation, saw children gathering flowers and berries along the banks of the canal and observing the progress of the work, but of this he never informed the officers of the company. No one lived nearer to the excavation than 100 yards away. The public street was about 100 yards distant therefrom. Plaintiff's two sons, one 9 and the other 5 1/2 years old, went, with two other boys, the elder of whom was 11 years of age, to the excavation to play with frogs, and while the younger son of plaintiff was standing on the ledge, inside the hole, engaged in such childish sport, he fell into the water, and was drowned. All of these boys had been playing with the frogs in the excavation for several days prior to the accident, but there was no evidence that any of the company's officials had knowledge of this fact. A day or two before the accident a man passing by warned these boys to get away from the excavation or they would get hurt. In going to this place the boys did not use the footpath. Neither plaintiff nor his wife knew of the existence of the excavation.

Under the facts stated, was the defendant company liable in damages to the plaintiff for the death of his child? This question turns upon another; that is, whether or not the company owed the child any legal duty which it neglected to perform, for there can be no actionable negligence without the breach of a legal duty. The rule is too well settled to need the citation of authority that a landowner is under no duty to have his land in safe condition for an adult trespasser to enter thereon. Such trespasser has ordinarily no remedy for an injury happening to him by reason of the condition of the property upon which he intrudes. He takes the risk of the condition of the premises. Nor is the owner bound to warn him of non-apparent dangers, provided they were not prepared with intent to harm trespassers. Is there any difference in the case of a child entering upon premises without the permission of the owner? There is an irreconcilable conflict of authority, in this country at least, upon the question, and it is not easily determined which way the weight of authority inclines. There are many decisions by courts of great respectability to the effect that "when a child of tender years commits a mere technical trespass, and is injured by agencies that to an adult would be open and obvious warnings of danger, but not so to a child, he is not debarred from recovering, if the thing instrumental in his injury were left exposed and unguarded, and were of such a character as to be likely to attract children, excite their curiosity, and lead to injury, while they were pursuing their childish instincts. Such dangerous and attractive instrumentalities become an invitation by implication." 7 Am. & Eng. Enc. Law (2d Ed.) pp. 403, 404. On the other hand, there are numerous cases wherein courts of the highest respectability enuncite the doctrine that an owner or occupier of land is ordinarily under no obligation to a trespasser so far as concerns the condition of his premises and the fact that the trespasser is an infant of tender years affords no reason for modifying this rule, and charging the owner or occupier of land with a duty which does not otherwise exist; and, if for more beneficial user he creates upon his premises an instrumentality which happens to be attractive to children, he does not thereby extend to them an implied invitation to enter thereon. The tendency of the more recent decisions seems to be in favor of the doctrine last mentioned, and we are of opinion that, upon principle, it is the stronger side of the question. The principle involved has been so frequently and elaborately discussed by learned jurists that it is unnecessary to do more than refer to some of the decisions which are particularly applicable to the case which we have under consideration. Before doing so, however, we take the liberty of making a somewhat extended quotation from a monograph in 11 Harvard Law Review, pp. 349-373, 434-448, by the Hon. Jeremiah Smith, formerly one of the justices of the supreme court of New Hampshire, wherein the subject, "Liability of Landowners to Children Entering Without Permission," is very learnedly and exhaustively treated. In maintaining the proposition that the landowner is under no duty, so far as concerns the condition of his premises, to intruding children, that eminent jurist says: "Assuming, then, that the law is not only settled, but is also consistent, in holding that the owner of land is not liable for the condition of his premises to an adult who enters without permission, the next inquiry is, what difference is there between the case of the adult intruder and the child intruder? Are there considerations which do not exist in the case of an adult, and which, when put into the scale, ought to turn the balance in favor of the child? The two prominent arguments are: (1) That the child is innocent; (2) that the child is incapable of protecting itself. What force is to be allowed to these considerations, and do they, when estimated at their true value, outweigh the reasons against imposing liability upon the landowner? *** Of course, the innocence of a plaintiff does not, per se, establish the fault of a defendant. The landowner cannot be liable unless he owed to the child a duty which he has neglected. Should the law, in view of the innocence of the child, impose on the landowner the duty here in controversy? No doubt there are cases where a defendant is rightly held liable to a child plaintiff when he would not be liable to an adult plaintiff under similar circumstances. Where it is admitted that a duty exists to use care to avoid harm to both children and adults (e. g. in the use of the public highway), then, in point of fact, more care may be required towards a child than towards an adult. In view of the child's helplessness and unconsciousness of danger, more care may, as matter of fact, be required under the unvarying legal rule of 'due care under the circumstances,' just as more care, in fact though not in law, may be required to avoid colliding with an obviously lame or blind adult than with a vigorous man in full possession of all his faculties. But all this is true only where it is admitted or proved that a duty exists. 'In considering the question as to whether a duty exists, there is no distinction between the case where an infant is injured and one where the injury is to an adult, though where the duty is imposed the law may exact more vigilance in its discharge as to the former.' [Citing Denman, J., in Dobbins v. Railroad Co. (Tex. Sup.) 41 S.W. 62, 38 L.R.A. 573.] So, if it be conceded that the defendant was negligent, and that his negligence constituted part of the plaintiff's damage, then the incapacity or immaturity of a child plaintiff may furnish a good answer to the defense of contributory negligence. Conduct of the plaintiff, which would have been negligent in an adult, may not be held negligent in a child. But the fact that the child plaintiff was not 'capable of contributory negligence' does not necessarily establish that the adult defendant was negligent. It does not per se prove that the defendant owed to the plaintiff a duty, or that he failed to perform a duty. 'If there was no breach of duty, then there was no wrong, irrespective of the boy's capacity to know that what he was doing was dangerous.' [Citing Lurton, J., in Felton v. Aubrey, 20 C.C.A. 436, 74 F. 353.] 'The fact that injury has resulted, and to a child himself incapable of negligence, will not...