Uthermohlen v. Bogg's Run Co.

Decision Date07 December 1901
Citation50 W.Va. 457
PartiesUthermohlen v. Bogg's Run Company.
CourtWest Virginia Supreme Court
1. Land Owner Trespasser Wanton Injury.

A land owner is under no duty to a mere trespasser to keep his premises safe, and the fact that the trespasser is a child does not raise a duty where none otherwise exists. Such a trespasser, injured on such premises, cannot recover damages of the land owner by reason of the unsafe condition of the premises, unless the land owner he guilty of negligence as to amount to wanton injury, (p. 459).

2. Operation of Mines Not Liable for Injury.

One who in the operation of his coal mines upon his own land uses a cable running upon pulleys to haul coal cars from his mine is not liable for injury to a child trespassing on the premises and receiving injury from such cable and pulleys. (p. 462).

3. Discretion of Trial Judge Will not be Reviewed by Appellate


The examination of an infant witness as to his competency must be left necessarily to the discretion of the trial judge, ana this discretion will not be reviewed by an appellate court unless the error of the judge be palpable and plain and amount to an abuse of his discretion. (p. 462).

4. Damages Action for Negligence.

There must be a duty resting by law on one person to charge him with damage from the negligence of another. No action for negligence will lie without a legal duty broken, (p. 468).

5. The "Turntable Cases" discussed.

Error to Circuit Court, Ohio County.

Action by Raymond Uthermohlen against the Bogg's Run Mining & Manufacturing Company. Judgment for defendant, and plaintiff brings error.


Howard & Handlan, for plaintiff in error.

A. J. Clarke and Henry M. Russell, for defendant in error.

Brannon, President:

Bogg's Run Mining and Manufacturing Company was engaged in mining coal from its land, and in its operations used a cable for hauling its coal cars from its mine to the tipple at the railroad and back to the mine. This cable ran over some pulleys necessary for its operation. Raymond Uthermohlen, a boy between seven and eight years of age, was playing with two other small boys on the premises of the said company, and in some way he was caught by the cable and his leg fastened between the cable and one of those pulleys, and badly injured, and then he brought this action against said company in the circuit court of Ohio County to recover damages for his injuries. The court excluded the plaintiff's evidence as not sufficient to sustain the action and directed a verdict for the defendant. The plaintiff, Uthermohlen, has brought the case to this Court.

I think the principles of law stated in Ritz v. City of Wheeling, 45 W. Va. 262, decide this case for the defendant, and I do not see that I can now add anything of value to what is there said further than to refer to a few eases decided since the decision of that case. It is a fundamental proposition that on the basis of negligence there can be no recovery of damages, unless the defendant owed a duty to the party injured, no matter what his damage may be., There must be a breach of duty, at the start. That very late, thorough and valuable work, Thompson's Commentaries on Negligence, Vol. 1, s. 3, says: "An essential ingredient in any conception of negligence is that it involves the violation of a legal duty, which one person owes to another, the duty to take care, for the safety of the person or property of the other; and the converse proposition is that, where there is no legal duty to exercise care, there can be no actionable negligence. Therefore, it is reasoned that a plaintiff who grounds his action upon the negligence of the defendant, must show not only that the conduct of the defendant was negligent, but also that it was a violation of some duty which the defendant owed to him." The unfortunate little boy was a trespasser upon the premises of the defendant, and the company, therefore, did not owe any duty to him, except to not wantonly or wilfully hurt him. The work just quoted, in s. 945, says: "The owner or occupier of real property is under no obligation to make it safe, or to keep it in any particular condition, for the benefit of trespassers, intruders, mere volunteers, or bare licensees, coming upon it without his invitation express or implied." And in s. 946, we read: "As a general rule the owner of private grounds is under no obligation to keep them in a safe condition for the benefit of trespassers, idlers, intruders, bare licensees, or others who come upon them, not by any invitation, express or implied, but for their own purposes, their pleasure, or to gratify their curiosity, however innocent or laudable their purpose may be." Surely, this is the law as to adults; but it is said that children form an exception, and it is sought in this case to make the defendant liable because of the tender age of the plaintiff. But we find the general rule above stated to be applicable to children as well as adults, as stated in 1 Thompson on Neg. s. 1025, thus: "The general rule undoubtedly is, that the owner or occupier of land is not bound to take pains to prepare his premises in any particular way, to the end of promoting the safety of children who may come thereon as trespassers or as bare licensees; but that, as in the case of adults, they take the premises as they find them, and if they are killed or injured by reason of the condition in which they find them, this does not give a right to an action for damages." Some courts, in cases of grievous misfortune have departed from these fundamental principles to allow a recovery in violation of the doctrine that where there is no duty broken, there can be no negligence, and that a land-owner in the use for lawful purposes of his property owes no duty of care to a trespasser. I repeat where there is no duty, there is no negligence, and where there is no negligence, there can be no recovery. When once you detract from a man's ownership and lawful dominion and use of his land by holding that in earning a livelihood he must take care to provide for those who come unsolicited upon it, where will you set the bounds of this invasion of this man's rights? Is he to secure his premises for their benefit? It is admitted on all hands that, as a general rule, he is not required to do this; but it is said that there is a notable exception to this general rule in the case of children. Judge Thompson, in s. 1024, Vol. 1, puts it thus: "A well-grounded exception to the foregoing principle is that one who artificially brings or creates upon his own premises any dangerous thing which from its nature has a tendency to attract the childish instinct of children to play with it, is bound, as a mere matter of social duty, to take such reasonable precautions as the circumstances admit of, to the end that they may be protected from injury while so playing with it, or coming in its vicinity. Things of this kind frequently pass under the designation of 'Attractive Nuisances.' " That statement is very broad, as it includes any dangerous thing which in nature has a tendency to attract the childish instincts of children to play with it. It is not confined to machinery. Where do we stop under this head? If machinery, what does it include? In these days of machinery, when it has so largely relieved the hands of man, the rule of dangerous and attractive machinery would be comprehensive. What things would be deemed dangerous under the rule above quoted from Thompson? What machinery would be dangerous? Almost all machinery is, in some conceivable circumstances or contingencies, dangerous. Surely we cannot deny an owner's use of his property by denying to him machinery and appliances that may, under some circumstances, be dangerous. But the thing doing the injury must also be attractive to children. Where do we stop under this head? When we go to say what machinery is attractive to some child, or even to children, we enter upon a wide, uncertain field. Under this rule the owner of land must infallibly judge in advance what is a machine or appliance both dangerous and attractive, on pain of suffering heavy damages. What a constant menace to ownership of real estate! What an infringement upon dominion over private property! It is, in a sense, and m no small degree, a taking of private property, because it detracts from the freedom of its use. If we stick to the bed-rock principles that a man has the right to use his property as he chooses for lawful purposes and that he owes no duty to use it in any particular way for the safety of trespassers, we have a certain fixed guide. It is true that the little boy is injured, but the owner whose machine injured him was engaged in lawful business upon his own premises, and it was farthest from his intention to hurt the child, and it is only a case of inevitable accident, which always has befallen, and always will befall, humanity, and for which no body is answerable. This is the only safe rule. The maxim that a man must so use his own property as not to hurt another extends only to neighbors who do not interfere with or enter upon it; the maxim ceases when the trespasser crosses the line. Gillespie v. McGowan, 100 Pa. St. 150. The doctrine upon which the plaintiff would sustain his case is that extracted above from Thompson on Negligence, and is founded upon a number of cases known as the "Turntable Cases," beginning with Railroad Co. v. Stout, 17 Wall. 657, holding that an owner is liable where he uses upon his premises machinery at once dangerous and attracfive to children in places where children are likely to go. In the case of Ritz v. City of Wheeling, cited, I expressed dissent from the principle announced in those cases, and stated that they were inconsistent with right of ownership of real estate and the rule that its owner owed no duty to trespassers, and cited several cases from eminent courts flatly condemning the rule, with some which, while...

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