Wheeling & L.E.R. Co. v. Harveyswarts V. Akron Water Works Co.

Citation77 Ohio St. 235,83 N.E. 66
Decision Date03 December 1907
Docket NumberNo. 9,830.,9,830.
CourtUnited States State Supreme Court of Ohio
PartiesWHEELING & L. E. R. CO. v. HARVEY

77 Ohio St. 235
83 N.E. 66


No. 9,830.

Supreme Court of Ohio.


No. 10,114.
Dec. 3, 1907.

Error to Circuit Court, Portage County.

Error to Circuit Court, Summit County.

Action by one Harvey against the Wheeling & Lake Erie Railroad Company. Judgment for plaintiff, and defendant brings error. Action by one Swarts against the Akron Water Works Company. Judgment for plaintiff was reversed by the circuit court, and plaintiff brings error. Judgment in the first case reversed, and in the second case affirmed.

In the village of Kent the Wheeling & Lake Erie Railroad Company has a railroad yard in the outskirts of the village. The right of way at that point is uninclosed and is 140 feet in width, the tracks are located in a cut 10 or 12 feet in depth, and the land on both sides is that much higher than the right of way. There are four tracks, and between the center track is a 60-foot turntable. About 800 feet east and the same distance west from the turntable the right of way is crossed by public streets. The turntable was not locked, but was fastened by an iron brake shoe, weighing not less than 10 pounds, that was laid in a slot and that could be lifted out, and the turntable then could be revolved. Just before the 4th of July, in the year 1904, two boys, one aged 13 and the other 10, while on their way to a car repairer's shanty located on the railroad's right of way to get a piece of iron to make ‘something’ for the Fourth of July, met the defendant's infant, a boy between 5 and 6 years of age, who wished to go with them, and although not invited to do so he yielded to his childish instincts and followed them down one of the streets to the right of way and along the tracks, past the turntable, to the repairman's shanty. The repairman was not at the shanty; but the boys found what they thought would answer their purpose, and started to return to the village, over the same course they had covered in going to the shanty. When they reached the place where the turntable was, they stopped to play with it. One of the older boys removed the fastening and revolved the turntable, and the little boy, who was sitting upon the turntable with his left leg hanging down over one end, was caught between the end of the table and the head block and lost his leg. It appears from the testimony of quite a number of boys that they had at different times played with the turntable, and also that they were driven away from the turntable whenever they were seen by any of the employés of the railroad company while so engaged. And it seems to have been generally known by the boys that they were not at liberty to play with the turntable. The only evidence tending to prove knowledge on the part of the railroad company, if it does so tend, that boys were playing with the turntable, is the testimony of the boys that they did play with it; that they had been driven away by employés of the company; and the testimony of the yard clerk, at one time in the employ of the company, that he had on several occasions stopped boys from playing with the turntable, and that on one occasion he had reported the fact to the station agent. In the petition it is averred that the turntable was located in the village, and at a place that was uninclosed and easily accessible to children, and that it was peculiarly attractive to children and calculated to entice them to play with it, and that when set in motion, which could easily be done even by children, was a source of latent danger to them, and that it was left unguarded, unfastened, and unlocked, although at slight expense and trouble it could have been made fast while not in use; that the railroad company knew that the children were wont to play with the turntable, and that it knew or ought to have known of the danger to them. At the close of plaintiff's evidence, and again at the close of all of the evidence, the defendant requested the court to direct a verdict in its favor. The plaintiff recovered a judgment for $6,000, which on error was affirmed by the circuit court.

In the second case, briefly stated, the facts are: On Sherbondy Hill, in the city of Akron, the defendant company maintained a reservoir about 15 feet in depth. The banks on the inside were precipitous, and the water about 8 feet in depth. When constructed, about 25 years ago, it was located on a tract of about 10 acres outside of the corporate limits of the city, but by the extension of the corporate limits in the year 1900, about one-half of it was comprised within the limits of the city. This 10-acre tract was not converted into a park but it was covered with trees and bushes, and, excepting the reservoir, was left very much in its natural state. The basin was about 250 feet from the nearest public road. From this public road the company had constructed a rough road or driveway to and around the reservoir for its own use. It also had inclosed the basin with a picket fence about 3 feet high. The evidence tends to prove that people, including children, resorted to these premises for the view from the hill, or for their own pleasure, as is not unusual on unimproved tracts of land so near a city. Late in May, in the year 1903, plaintiff's decedent, Calibel Georgia Bush, a child 9 years of age, together with her sister aged 11, and another girl aged about 12, were permitted by their parents to take their luncheon and to go to the woods in the vicinity of these premises to picnic. After arriving at the woods, and having spent several hours there in strolling about, they discovered the reservoir. Two pickets were off of the fence, leaving an opening 8 1/2 inches in width. Through this opening they crawled, and stood and sat upon the bank for a few minutes, when the youngest fell into the reservoir and was drowned. It appears that a few weeks before this the gate in the picket fence was down, and a little boy, a son of one of the defendant's employés, fell into the reservoir, and that this accident had been brought to the notice of the company, and that prior to the accident in the present case the gate had been nailed up. Plaintiff recovered a judgment for $1,100, on the ground of the defendant's negligence, and the circuit court reversed for error in overruling the motion of the defendant to direct a verdict at the close of the plaintiff's testimony, and entered a judgment dismissing the petition.

Syllabus by the Court

It is not the duty of an occupier of land to exercise care to make it safe for infant children who come upon it without invitation but merely by sufferance.

A railroad company is not liable to an infant who comes upon its premises without invitation, and who is injured there while playing, without its knowledge with a turntable. The doctrine of the turntable cases is disapproved. Harriman v. Railroad Co., 45 Ohio St. 11, 12 N. E. 451,4 Am. St. Rep. 507, distinguished.

A waterworks company is not liable for the death by drowning, of an infant who comes upon its land without invitation, and there falls into a reservoir or basin of water while playing about it, without the knowledge of the company.

[Ohio St. 239]

[83 N.E. 68]

Squire, Sanders & Dempsey, for plaintiff in error Wheeling & Lake Erie Railroad Company.

W. J. Beckley, for defendant in error Harvey.

Musser, Kohler & Mottinger and Grant & Sieber, for plaintiff in error Swarts.

Allen, Waters & Andress, for defendant in error Akron Water Works Company.

SUMMERS, J. (after stating the facts as above).

The railroad company is not answerable in damages for the loss of the little boy's leg, unless his injury was caused by the neglect by the railroad company of some duty it owed to the boy, and the waterworks company is not answerable in damages for the death of the little girl, unless she lost her life because the employés of the company neglected to observe some duty that it owed to her. [Ohio St. 240]Whether any and what duty rested upon the defendant is a question of law whether the defendant performed or observed that duty, or neglected to do so, and plaintiff in consequence was injured, is a question of fact. The duty of the owner or occupier of land to persons coming upon it depends somewhat upon whether they are there by his invitation or permission. To invited persons it is his duty to exercise reasonable care for their safety. To licensees it is his duty to give notice of hidden dangers or traps. While trespassers, that is, persons entering without permission, assume the risk of injury from the condition of the premises, and the duty of the occupier to them is only to be careful not to injure them by bringing force to bear upon them. The only exception to his nonliability to persons entering without his permission was where he made a change in the condition of his land, adjacent to a public highway, so as to endanger the safety of travelers who might, without fault on their part, accidentally stray from the highway.

So the law stood until the decision in the Sioux City & Pac. R. R. Co. v. Stout, 17 Wall. (U. S.) 657, 21 L. Ed. 745, decided in 1874. In that case a little boy, about six years of age, lost his foot while playing with a turntable on the uninclosed lands of the railroad company in company with two other boys, and a judgment for $7,500 was sustained. This case was tried before Dillon, circuit judge, and Dundy, district judge. The circuit judge charged the jury as follows: ‘This action rests, and rests alone, upon the alleged [Ohio St. 241]negligence of the defendant, and this negligence consists, as alleged, in not keeping the turntable guarded or locked. Negligence is the omission to do something which a reasonably prudent man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do; or doing something which a prudent or reasonable man would not do, under all the circumstances surrounding the particular transaction under judicial investigation. If the turntable, in the manner it...

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