Thompson v. Illinois Cent. R. Co.

Decision Date13 October 1913
Docket Number16,087
Citation105 Miss. 636,63 So. 185
CourtMississippi Supreme Court
PartiesSALLIE THOMPSON v. ILLINOIS CENTRAL R. CO

APPEAL from the circuit court of Pike county, HON. D. M. MILLER Judge.

Suit by Sallie Thompson against the Illinois Central Railroad Company. From a judgment sustaining a demurrer to plaintiff's declaration she appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Whitfield & McNeill, for appellant.

We respectfully submit that nothing is necessary to secure a reversal of this judgment, except to fully apprehend the facts. What might become of the case, as it develops, by showing the facts in a trial before a jury, we are not now concerned with. What we press home on the court now, is that no demurrer such as this, admitting these facts, can, by any possibility, be sustained in principle or law.

The court is familiar with the doctrine of the turntable cases. Those cases all proceed upon the principle that all persons are bound to take knowledge of the habits and instincts of children, and that no proof of their habits or instincts is required. The jury know, as all other persons know, such habits and instincts; this is expressly adjudged in Spengler v. Williams, 6 So. Rep., page 614, at the bottom of the page, the court saying, through COOPER, J.:

"All persons are supposed to know the curiosity of children and their disposition to play around and about objects of unusual appearance. No court would permit a verdict to stand which rested upon the denial of such instincts in children, or excused the negligence of the defendant because of the want of specific evidence that he possessed that common knowledge which all men are assumed to have." To the same effect is Temple v. Electric Light Company, 89 Miss. 7.

But besides this, the demurrer in this case admits that the children were attracted to this lake and that defendant knew it. The principle of the turntable cases then proceeds along this line; that a turntable is such an object as does attract children and that, although a child may be a technical trespasser, and said turntable be located on the defendant's land, yet, in view of the immaturity of the child, because of the fact that it is a child, it shall not be treated as an adult trespasser would be, but that the defendant will nevertheless be liable, for the reason that it is negligence in the defendant, as to children, to leave a turntable unguarded. Kansas Central Railway Company v Fitzsimmons, 31 Am. Rep. 203; Keffe v. Milwaukee Railway Company, 18 Am. Rep. 393; Evansich v. Gulf Railroad, 44 Am. Rep. 586. In Gulf, etc., Ry. Co. v Styron, 1 S.W. 161; Fort Worth, etc., Ry. Co. v Robertson, 14 L. R. A. 81; Bond v. City Railroad Co., 49 Am. St. Rep. 412; Bridger v. Ashley Railroad Company, 27 S.C. 476; Mackey v. Vicksburg, 2 So. 180; Hydraulic Works Co. v. Orr, 83 Pa. St. 332; Keffe v. Railroad Co., 21 Minn. 207; Railroad Co. v. Stout, 17 Wall, 657; Spengler v. Williams, 6 So. 613; City of Pekin v. Patrick McHon (Ill. Sup. Ct.), 27 L. R. A. 206; such are Mackey v. Vicksburg, 64 Miss. 777; Bond v. Shreveport Railroad Co., 49 Am. St. Rep. 406-433; Brinkley Car Company v. Cooper, 60 Ark. 545 and Mackey v. Vicksburg, 64 Miss. 777; Powers v. Harlon, 53 Mich. 507.

We conclude our citation of cases with one which we most earnestly commend to the court, Price v. Atchison Water Company, 62 Am. St. Rep. 625. We call the court's attention to the fact that, in this case, the minor boy was about eleven years of age and was shown to be a bright, intelligent boy. He was drowned in one of the reservoirs of the defendant company.

The statement, not borne out at all by the authorities cited in Cyc., vol. 296, 464, that the weight of authority is against liability in this class of cases where excavations or ponds or reservoirs, etc., are involved, is, we submit, not accurate as to the weight of authorities; but what we especially and most earnestly emphasize for the court is, that Mississippi is squarely and irrevocably committed to the sounder and more humane view that the principle of the turntable cases applies to any object or situation attractive to children by reason of their childish curiosity or instincts, wherever the defendant has not exercised due care in guarding against injury to children. The very cases we have cited, the three in our brief above, are cases, first, of an excavation; second, of a pile of lumber; and third, of a spreading oak tree, dangerous and attractive to boys; and the courts throughout the country have cases as I have stated the Mackey case squarely aligning our court with those courts, announcing the true view. If we had no precedent, I should, as I say, entertain not the slightest doubt that this court, as at present constituted, would announce the doctrine of the Mackey case, and the Spengler case, and the Temple case, as the true law, because reason and humanity enforce that view.

But I want, in conclusion, to call the court's attention to the fact that we are not trying a case which the defendant won before a jury, but we are trying a case in which his demurrer admits every proposition necessary to recovery, to be true. All these questions of fact, to wit: First, whether the parent, the mother, had been guilty of such contributory negligence as would bar her; and second, whether this child, not nine years old, was of sufficient degree and maturity of intelligence to have contributory negligence applied to him, if it existed; and, third, whether the lake was in fact attractive to the children; and, fourth, whether the defendant knew or ought to have known that it was so; and fifth, whether defendant knew, or with the exercise of ordinary care, should have known that children bathed and waded in said lake; and sixth, whether the public path was near the lake and that children, and the public generally, used that path daily, with the knowledge and consent of the defendant; and seventh, whether the bathing and wading in said water of said lake was done daily with the permission and with the knowledge and consent of the defendant, each and all of these facts, every one of which is averred to have existed in the declaration, and admitted to have existed, by the demurrer, should, of course, have been submitted to a jury as questions of fact, and not determined by the court on demurrer.

"The question of defendant's care is for the jury." At page 414 about midway the page, he says again, quoting from Sheatmen & Redfield on Negligence, vol. 107, sec. 99: "It is not necessary that the defendant should actually know of the danger to which plaintiff is exposed. It is enough if he has sufficient notice or belief to put a prudent man on the alert, if he does not take such precautions as a prudent man would take under similar notice or belief, he is liable."

And Mr. Freeman adds immediately: "And this doctrine has been applied to cases of injury to children."

And this declaration, let me again say, avers specifically that the defendant was negligent; that it took no care; that he gave no warning; published no notice, and guarded, in no way, against the danger, although knowing that this child, and other children, had been in the habit of daily wading and swimming in this lake; and that, too, with the full knowledge and consent of the said defendant.

We refer without quotations, to the following other authorities: Hydraulic Works Co. v. Orr, 83 Pa. St. 332, adopted and approved by COOPER, J.: Mackey v. Vicksburg, 2 So. 180; Young v. Harny, 16 Ind. 314; Lepwick v. Gaddis, 26 L. R. A. 686; Kansas Cent. Ry. Co. v. Fitzsimmons, 31 Am. Rep. 203.

Having, now, analyzed the declaration and the demurrer and shown, first, that the mere reading of this declaration ought certainly to secure the reversal of this judgment; and having in the second place, carefully analyzed the authorities showing what the turntable doctrine is, that is, what the principle is, underlying the turntable cases, and that that principle has been adopted in this state, and applied by this supreme court, properly to any and all objects attractive to children, whether excavations, ponds or lakes, piles of lumber, or attractive small oak trees, we do submit, with the utmost confidence, that this court should promptly reverse the judgment of the court below, and overrule the demurrer; that this case may be tried in the full light of all the facts, and not be shunted off upon a demurrer unadvisedly taken, admitting facts which could not be admitted with any possibility of having such demurrer sustained.

Mayes & Mayes, for appellee.

The one striking feature about the brief of appellant is that none of the latest adjudications on this interesting topic are considered therein. Whether counsel was investigating in the American State Reports, or in the L. R. A., that investigation seems to have stopped short about twenty years ago, and does not extend to, or include the later adjudications, including the Vermont case of the year 1911, in which the courts have reached a conclusion precisely the opposite of that for which appellant contends. That case is Bottum v. Hawks (decided in 1911), 35 L. R. A., New Series, page 440.

"To keep within the established principles of the common law, the question of liability in cases of this kind should be made to turn on the presence or absence of an invitation on the part of the owner. A naked trespasser or bare licensee enters for purposes of his own; he acts for his own benefit or convenience; and the owner gains nothing. But, if invited one enters not alone from motives of his own, uncontributed to by the act of the owner, but is induced, in some measure by the conduct of the latter. The owner, in contemplation of law, gains something from the...

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