Zagar v. The Union Pacific Railroad Company (James C. Davis Substituted for John Barton Payne

• Decision Date: 07 April 1923
• Docket Number: 24,069
• Parties: JOSEPH ZAGAR, a Minor, by BLAZ ZAGAR, His Next Friend, Appellant, v. THE UNION PACIFIC RAILROAD COMPANY (JAMES C. DAVIS substituted for JOHN BARTON PAYNE, as Director-general), Appellees
• Court: Kansas Supreme Court

214 P. 107

113 Kan. 240

JOSEPH ZAGAR, a Minor, by BLAZ ZAGAR, His Next Friend, Appellant, v. THE UNION PACIFIC RAILROAD COMPANY

(JAMES C. DAVIS substituted for JOHN BARTON PAYNE, as Director-general), Appellees

No. 24,069

Supreme Court of Kansas

April 7, 1923

Decided January, 1923.

Appeal from Wyandotte district court, division No. 3; WILLIAM H MCCAMISH, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE--Steep Bluff Along Railroad Right of Way--Duty of Railroad Company Toward Strangers. The owner of land on which a steep bluff is situated is not required to fence it, or otherwise insure the safety of strangers who may come upon his premises, not by invitation, but for the purpose of amusement or for motives of curiosity.

2. SAME--Steep Bluff Along Railroad Right of Way--Excavations--Not an Attractive Nuisance--Injury to Boy. And, where the owner, for his own uses, excavates at the base of a natural bluff, making it steeper, and where a boy thirteen and a half years old, while playing in a cave dug into the face of the bluff by other boys, is seriously injured by a large quantity of earth falling upon him, held, that the case does not come within the attractive nuisance doctrine and the owner is not liable for the injury.

James M. Meek, and H. J. Emerson, both of Kansas City, for the appellant.

R. W. Blair, T. M. Lillard, O. B. Eidson, all of Topeka, and A. L. Berger, of Kansas City, for the appellees.

OPINION

HOPKINS, J.:

The question here presented is whether a bluff, which is from 40 to 100 feet high and extending along the right of way of a railroad, and which has been excavated at the base so that it is steeper than it was in its natural formation, is an attractive nuisance. The excavating was done by defendant at various times since 1903 and extended along its right of way in Kansas City, Kan., for about a thousand feet. Children residing in that vicinity resorted there to play various games. They made caves, constructed ladder ascents by cutting out footholds, and constructed paths along the face of the bluff in order to provide ways of ascent and descent.

On October 10, 1918, the plaintiff, who was then about thirteen and a half years old, together with a number of other boys, were playing along this bluff, and, while standing in the edge of a cave which had been dug into the face of the bluff by other boys, a large section of earth fell upon him, crushing him and fracturing one of his vertebrae, producing paralysis of the limbs from which he will be a cripple for life. He sued to recover $ 50,000 damages.

The trial court sustained defendant's motion for judgment on the pleadings and opening statement of the plaintiff, and plaintiff appeals.

The authorities are divided as to the principles of law applicable to attractive nuisance cases. This court, while upholding the doctrine in the turntable cases, has refused to extend it to those cases where the thing or condition complained of was similar to or a reproduction of nature.

The plaintiff strongly contends that the case of Price v. Water Co., 58 Kan. 551, 50 P. 450, and like authorities control here. We do not concur in that view. In the Price case the water company constructed and used a contrivance which, in itself, was an attractive danger and from which a boy of eleven years slipped into a reservoir and was drowned. In the opinion it was said:

"Without doubt, the common law exempts the owner of private grounds from obligation to keep them in a safe condition for the benefit of trespassers, idlers, bare licensees, or others who go upon them, not by invitation, express or implied, but for pleasure or through curiosity. Cooley on Torts (2d. ed.), 718; 1 Thompson on Negligence, 303; Dobbins v. M. K. & T. Rly. Co., 41 S.W. 62. The common law, however, does not permit the owner of private grounds to keep thereon allurements to the natural instincts of human or animal kind, without taking reasonable precautions to insure the safety of such as may be thereby attracted to his premises. To maintain upon one's property enticements to the ignorant or unwary, is tantamount to an invitation to visit, and to inspect and enjoy; and in such cases the obligation to endeavor to protect from the dangers of the seductive instrument or place follows as justly as though the invitation had been express." (p. 554.)

Also--

"The principle involved is the same as that upon which those actions known as the 'turntable cases' have been resolved, and in which it has been held, with few exceptions, that the maintenance, in an unguarded manner, of a dangerous apparatus for the shifting of locomotives, attractive to children residing or accustomed to playing near by, constitutes negligence upon the part of the companies." (p. 555.)

Also--

"One may not bait his premises with some dangerous instrument or quality, alluring to the incautious or vagrant, and then deny responsibility for the consequences of following the natural instincts of curiosity or amusement aroused...