Turess v. N.Y., S. & W. R. Co.

• Decision Date: 23 June 1898
• Parties: TURESS v. NEW YORK, S. & W. R. CO.
• Court: New Jersey Supreme Court

40 A. 614

61 N.J.L. 314

TURESS

v. NEW YORK, S. & W. R. CO.

Supreme Court of New Jersey.

June 23, 1898.

(Syllabus by the Court.)

Error to circuit court, Passaic county.

Action by George Turess against the New York, Susquehanna & Western Railroad Company. A demurrer to the declaration was sustained, and plaintiff brings error. Affirmed.

The judgment brought up for review was entered in favor of the defendant upon a demurrer to the plaintiff's declaration, the ground of decision being that no actionable wrong on the part of the defendant was disclosed thereby. The allegation of the declaration, in substance, is that the defendant company was the owner and operator of a railroad running through the city of Paterson, and that, in connection therewith, it operated and controlled a turntable on its land abutting on the south side of Ellison street, distant about 100 feet from the main tracks of the railway; that said Ellison street is a public highway in the residential portion of the city of Paterson aforesaid, and is daily passed over by large numbers of people,—men, women, and children,—who have a full and uninterrupted view of the said turntable as they pass along said street; that said turntable, which is about 50 feet long and 8 feet wide, extends in a northerly and southerly direction, and is so situated on the land aforesaid that the northerly end of its stationary abutment (which stationary abutment is about 10 feet long) is about 5 feet from the southerly line of said Ellison street; that said turntable is very dangerous for children to play with, but is, nevertheless, a device in its nature exceedingly attractive and alluring to children, and apt and likely to cause them to use it and turn it for their amusement and sport, and, in consequence of their so using and turning it, to hurt and injure themselves; that the only way in which the turntable could be safely and carefully maintained by the defendant was by surrounding it with a fence, and keeping it locked, to prevent the approach of children to it, and to prevent them from using It; that it was the duty of the defendant to use care, prudence, and precaution that children should not be injured thereby, and to that end to prevent approach and access to the turntable by fencing it around, and by securing it with a lock, so that it could not be turned by children who might resort to it; that the defendant, disregarding its duty in that behalf, failed to use reasonable care, prudence, and precaution, but carelessly and negligently maintained and controlled the turntable without any fence around it to prevent the access of children to it, and without keeping it locked. The declaration then avers that by means of the premises, and in consequence of said neglect and carelessness of the defendant, the plaintiff, an infant of the age of 10 years and 9 months, being attracted and allured by the turntable to play with the same, and to put the same in motion, did so; and while it was in motion—it having been moved by himself and his playmates—the plaintiff climbed on the end of it, resting on his belly, and was thereby, in the turning of the table, caught between it and the stationary abutment, and seriously injured.

Argued February term, 1898, before MAGIE, C. J., and LIPPINCOTT, GUMMERE, and LUDLOW, JJ.

William I. Lewis, for plaintiff in error.

John W. Griggs, for defendant in error.

MAGIE, C. J. (after stating the facts). The ground upon which the alleged duty of the defendant company is rested, involves the doctrine of the cases which have come to be called "Turntable Cases." The first case of importance in this country upon that subject is Railroad Co. v. Stout, 17 Wall. 657. That case has been followed more or less closely in a great number of cases, which may be found collected in 27 Am. & Eng. Enc. Law, 344. While the doctrine of the United States supreme court in the case cited has been adopted by many courts, it has, as we shall see, the dissent and disapprobation of other courts. It is now for the first time presented for consideration to the courts of this state. The rule of duty involved in the doctrine under consideration may be thus generally stated: That a railroad company which maintains on its own ground a turntable, which, from its attractiveness to the eyes of children, or from its being adapted by its construction to provide for children an attractive thing to play upon, is bound to take reasonable care that they be not injured thereby. Sometimes emphasis has been laid upon the fact that the turntable is maintained near public streets and places, or where people and children are accustomed to visit or pass through, as in Ferguson v. Railroad Co., 75 Ga. 637. Sometimes it is stated more broadly, as by Young, J., in Keffe v. Railway Co., 21 Minn. 207, where he says that a railroad company, when it sets before young children a temptation which it has reason to believe will lead them into danger, must use ordinary care to protect them from harm. It is nowhere pretended that the rule applies in the case of adults, who, under similar circumstances, would undoubtedly be trespassers, to whom the railroad company would owe no duty, or at most would be admitted by license or permission, and to them the railroad company would owe no duty but to abstain from willful injuries, and from maintaining hidden and concealed dangers. But the expressed notion is that under such circumstances young children are not trespassers, because allured and tempted to come upon the land of another, and not being of sufficient age to appreciate the dangers consequent on yielding to such temptation. It is obvious that the principle on which the rule rests, if sound, must be applicable more widely than merely to railroad companies and the turntables maintained by them. It would require a similar rule to be applied to all owners and occupiers of land in respect to any structure, machinery, or implement maintained by them thereon which possesses a like attractiveness and furnishes a like temptation to young...