Walker's Adm'r v. Potomac

• Decision Date: 22 March 1906
• Citation: 53 S.E. 113,105 Va. 226
• Court: Virginia Supreme Court
• Parties: WALKER'S ADM'R. v. POTOMAC, F. & P. R. CO.

53 S.E. 113

(105 Va. 226)

WALKER'S ADM'R.

v.POTOMAC, F. & P. R. CO.

Supreme Court of Appeals of Virginia.

March 22, 1906.

Negligence—Injuries to Children—Turntables.

Under the common-law rule that a landowner owes no duty to a trespasser or bare licensee to have his land in a safe condition, a railroad company is guilty of no negligence in maintaining an unlocked and unfastened turntable on its premises, at a distance of 50 to 300 feet from public grounds, resulting in an accident causing the death of a child 12 years old, who trespassed thereon.

[Ed. Note.—For cases in point, see vol. 37, Cent. Dig. Negligence, § 34.]

Error to Circuit Court, Orange County.

Action by the administrator of Bernard Lee Walker against the Potomac, Fredericksburg & Piedmont Railroad Company. From a judgment in favor of defendant, plaintiff brings error. Affirmed.

Morton & Shackelford and Meredith & Cocke, for plaintiff in error.

St. Geo. R. Fitzhugh and J. G. Williams, for defendant in error.

BUCHANAN, J. This action was instituted by the plaintiff in error against the defendant company to recover damages for the death of his intestate, caused by the alleged negligence of the defendant

The evidence shows that the defendant has a turntable on its own premises near Orange Courthouse, located about 220 feet from its station or depot; about 360 feet from the public road, which runs from the depot to the village of Orange Courthouse; close by a millroad, which is not public; 50 or 60 feet from what Is known as the "Horse Show grounds"; and about 340 feet from any inhabited house; and in an open and unoccupied field; that boys were in the habit of playing ball on the Horse Show grounds, between which and the railway land there was no fence; that boys frequently rode on the turntable, and had once been seen riding on it by the depot agent; that some years before the accident two boys had been injured in playing with the turntable, which was of the ordinary kind in use, and was neither locked nor fastened; that on the Sunday evening of the accident, the plaintiff's intestate, who was a little over 12 years of age, with two other boys of about the same age, was pushing the turntable around the track preparing to jump on it and as he did so one of his feet was caught between the rails and mashed, causing lockjaw, from the effects of which he died.

Upon the trial of the cause, there was a verdict and judgment in favor of the defendant. To that judgment this writ of error was awarded.

The only question involved in this writ of error is whether or not under the facts of the case, which are not disputed, the defendant was guilty of negligence in leaving the turntable in the place where it was, on its own premises, unfenced and unfastened.

The general rule is that a landowner does not owe to a trespasser (and the same is true of a bare licensee) the duty of having his land in a safe condition for a trespasser to enter upon. The latter has ordinarily no remedy for harm happening to him from the nature of the property upon which he intrudes, and he takes upon himself the risks of the condition of the land, and to recover for an injury happening to him he must show that it was wantonly inflicted, or that the owner or occupant being present could have prevented the injury by the exercise of ordinary care after discovering the danger. Norfolk & Western Ry. Co. v. Wood, 99 Va. 156, 158, 159, 37 S. E. 846; Hor-tenstein v. Va.-Carolina Ry. Co. 102 Va. 914, 918, 47 S. E. 990; Williamson v. Southern Ry. Co., 104 Va. —, 51 S. E. 195; Bishop on Non-contract Law, § 845; Cooley on Torts (2d Ed.) 791-794.

It is not denied, as we understand the counsel for the plaintiff, that such is the common-law doctrine as to adult trespassers and bare licensees; but his contention is that under certain circumstances, such as are disclosed by this record, it is not the rule as applied to children. To sustain that contention, he relies upon the case of Sioux City R. Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745, and the cases which follow it.

While these cases, which are known as "The Turntable Cases, " fully sustain the plaintiff's contention, there is a remarkable conflict of authority upon the subject. The doctrine announced in the Stout Case has been discussed in numerous cases, by the appellate courts of many of the states of this country, with the result that there are many authorities sustaining the doctrine in Its broadest sense; while many utterly repudiate it, and others give it a qualified recognition, and practically limit It to railroad turntable cases. A question or problem, which has given rise to such a wide divergence of opinion, is not of easy solution.

As this is the first case involving this precise question which has ever come to this court, so far as the reported decisions show, we are at liberty to follow that line of decisions which, in our judgment, is more nearly In accord with settled principles of law, and is sustained by the better reason.

In order for the plaintiff to recover in this case, it must appear that the defendant company owed his intestate some duty which It failed to discharge; for where there is no duty there can be no negligence. N. & W. Ry. Co. v. Wood, 99 Va. 156, 158, 159, 37 S. E. 864; Hortenstein v. Va.-Car. Ry. Co., 102 Va. 914, 918, 47 S. E. 996; Carson Lime Co. v. Rutherford, 102 Va. 252, 46 S. E. 304.

As before stated, the common law imposes no duty upon a landowner to use care to keep his premises in such condition that trespassers and bare licensees going thereonmay not be injured. This is unquestionably the rule as to adults, and the weight of authority, as it seems to us, shows that it is the rule as to children.

The cases cited in the case of Sioux City R. Co. v. Stout, to sustain the opposite view, do not, as it seems to us, do so. Those cases come within other rules, or within well-defined exceptions to the general rule that a landowner owes no duty to a trespasser, adult or infant, except that he must not wantonly or intentionally injure him or expose him to danger. This is clearly shown, we think, by the Supreme Judicial Court of Massachusetts, in the case of Daniels v. N. Y. & N. E. R. Co., 154 Mass. 349, 28 N. E. 283, 13 L. R. A. 248, 249, 26 Am. St. Rep. 253, and by Judge Peckham (now of the Supreme Court of the United States), in delivering the opinion of the Court of Appeals of New York, in Walsh v Pitchburg R Co., 14? N. Y. 301, 39 N. E. 1068, 27 L. R. A. 724, 45 Am. St. Rep. 615

The conclusion reached in those cases is fully sustained by the following cases (and many more might be cited), which are all "Turntable Cases." or cases in which the doctrine of those cases was involved: Frost v. Eastern R. R. Co., 64 N. H. 220, 9 Atl. 790, 10 Am. St. Rep. 396 f Delaware, etc., Ry. Co. v. Reich (N. J.) 40 Atl. 682, 41 L. R. A. 837, 68 Am. St. Rep. 727; Uttermohlen v. Boggs Run, etc., Co. (W. Va.) 40 S. E. 410, 55 L. R. A. 911, 88 Am. St. Rep. 884; Ryan v. Towar (Mich.) 87 N. W. 644, 55 L. R. A. 310, 92 Am. St. Rep. 41; Paolino v. McKendall (R. I.) 53 Atl. 268, 60 L. R A. 133, 96 Am. St. Rep. 736; Dobbins v. Missouri etc. Ry Co. (Tex.) 41 S. W. 62, 38 L. R. A 573. 66 Am. St. Rep. 856: Savannah, etc., Ry Co v Beavers (Ga.) 39 S. E. 82, 54 L.E.A. 314

The same conclusion was reached by this court in Clark v. City of Richmond 83 Va. 355, 5 S. E. 369, 5 Am. St. Rep. 281 The city had made an excavation upon the land of another, into which a child of six years fell and was injured In denying the child the right to recover in that case it was said, that were the excavation is so near the highway that a traveler, by making a false step or being affected by sudden giddiness, might be thrown into the excavation and injured, there would be a liability. "But if, in order to reach the place of danger, the party injured must become a trespasser upon the premises of another, the case will be different; for, in such a case, there is no breach of duty from which the liability to respond in damages can result."

But in some of the "Turntable Cases" the right to recover is maintained upon the doctrine of constructive invitation; that is, that if a person is allured or tempted by some act of a railroad company to enter upon its lands, he is not a trespasser, and it is held that leaving a turntable unfastened or unguarded, under circumstances similar to those disclosed by this record, is such an act

One of the cases cited and relied on to sustain this contention is the case of Bird v. Holbrook, 4 Bing. 628. The defendant in that case, for the protection of his property, some of which had been stolen, set a spring gun without notice in a walled garden some distance from his house. The plaintiff, who climbed over the wall in pursuit of a stray fowl, having been injured, it was held that the landowner was liable. The express object In setting the spring gun was to inflict injury—to do an intentional wrong.

Another case relied on is that of Townsend v. Wathen, 9 East, 277. That was a case where a landowner had set traps on his premises near the highway, and baited them with decaying meat, so that its scent would extend not only to the highway, but beyond to the private premises of the plaintiff, whose dogs, scenting the meat, came upon the defendant's premises and were caught in a trap and thereby killed. It was held in that case that a man had no right to set traps of a dangerous description in a situation to invite, and for the very purpose of inviting, his neighbor's dogs, as it would compel them by their instinct to come into his traps. The act of the defendant in that case was not in the prosecution of his legitimate business; but, as the court said, was a mere malicious attempt, successful in its result, to entice his neighbor's animals upon his premises.

The gravamen of both these actions was the wrongful intention of the defendants. To liken the case of a railroad company erecting a turntable on its own premises for its own necessary...