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Neither had any knowledge of the condition of the slack, which on its
surface presented no sign of dangef, but there was fire underneath.
Suon afterwards some ''trapper" boys came out of the coal pit with
lamps upon their heads and with dirty faces. They yelled, concerning
the plaintiff, " Let's grease him," " Let's burn him." This frightened
the plaintiff and he ran in the direction where his mother was staying.
He accidentally fell into the slack heap, and was badly burned. Suit
was brought to recover damages from the railway company for the in-
juries thus inflicted upon him, and it was held that the company was
guilty of negligence, in view of the statutory obligation to fence; that
the lad was not a trespasser, under the circumstances, and had not been
guilty of contributory negligence. It was also held that the case was
within the rule that the court may withdraw a case from the jury al-
together and direct a verdict, when the evidence is undisputed, or is of
such conclusive character that the court would t)e compelled to set aside
a verdict returned in opposition to it: Union Pac. Ry. Ck).v. McDonald »
152 U. S. 262.

It is the duty of a railway company to so fasten its turntable as to
prevent injury to those who, by reason of their tender years, are inca-
pable of comprehending its dangerous character, either by locking it,
or in s ^roe other way preventing access to it. A failure to take such
AM. St. Rbp., Vol. XLIX. -27



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418 Barnbb v. Shbeyeport Citt R. R. Co. [Louisiaiiai

precaution it negligence on the part of the companjr, for which it must
respond in damages: Ilwaco Ry. etc. Co. v . Hednck, 1 Wash. 446; 22
Am. 8t. Rep. 169; Kansas etc. Hy. Go. v. FitzsimmonSi 22 Kan. 686;
81 Am. Rep. 203, and monograDhicnote discassing the question; Keffe
V. Milwaukee etc. Ry. Co., 21' Minn. 207; 18 Am. Rep. 393; note to
Cauley V. Pittsburgh etc. Ry. Co., 40 Am. Rep. 668; Nagel ▼. Mis-
souri Pac. Ry. Co., 75 Mo. 653; 42 Am. Rop. 418; Evansich v. Railway
Co., 57 Tex. 126; 44 Am. Rep. 586; note to Schmidt v. Kansas Cijhr
Distilling Co., 59 Am. Rep. 23, 26; Frost v. Eastern R. R., 64 N. H.
220; 10 Am. St. Rep. 396; Bridger v. Asheville etc. R. R. Co., 27 S. 0.
456; 13 Am. St. Rep. 653; Gulf etc.Ry. Co. v. McWhirter, 77 Tex. 356;
19 Am. St. Rep. 755.

In this class of cases, the question as to whether or not a railway
compan>[ is guilty of negligence in leaving its turntable unfastened,
thereby injuring a child of tender years, is held to be a question for the
jury under all the facts and circumstances of each particular case: Il-
waco Ry. etc. Co. v. Hedrick, 1 Wash. 446; 22 Am. St. Rep. 169.

The ''turntable" cases, however, are not harmonious. Thus, in
Walsh V. Fitchburg R. R. Co., 145 N. Y. 301, 45 Am. St. Rep. 616, it is
held that if premises are open and unguarded, and the public is per-
mitted to cross and to be upon them at will, the landowner owes to
every person coming thereon the duty to abstain from injuring him in-
tentionally, or by failing to exercise reasonable care, but does not owe
him the duty of active vigilance to see that he is not injured while on
such premises for his own convenience. Hence, a railway maintaining
a turntable upon land which the public is in the habit of crossing ana
being upon at pleasure but not by invitation, does not owe the duty to
children to keep such turntable fastened or locked when not in use, so
as to prevent access to it by children. If it is on the land of its owner,
and is used by him for the sole purpose of conducting his business, and
is fit and proper for that purpose, and is not built in any improper or
negligent way with reference to the transaction of his business, he does
not owe any furthf^r duty to persons, whether children or adults, who
have no businops on his land, and who are there unasked, and whose
presence is merely tolerated. For similar views, see Frost v. Eastern
K. R., 64 N. H.220; 10 Am. St. Rep. 396; Bates v Railway Co., 90
Tenn. 36; 25 Am. St. Rep. 065; Daniels V. New York etc. R. R. Co.,
154 Mass. 349; 26 Am. St. Rep. 253; note to Schmidt v. Kansas City
etc. Co., 59 Am. Rep. 24. These cases consider it error to submit the
question of defendant's nejsligence to the jury where he has violated no
duty owed to the plaintiff, and that he owes no duty to a trespasser:
Walsh V. Fitchburg R. R. Co., 145 N. Y. 301; 45 Am. St. Rep. 615.
Neither is the defendant liable where the turntable is located in an
isolated position: St. Louis etc. R. R. Co. v. Bell, 81 111. 76; 26 Am.
Rep. 269.

A railroad company is bound to exercise its dangerous business with
due care to avoid injury to others, even to the protection of a trespasser
who is not guilty of contributory negligence. Hence if a boy nfteen
years old, wrongfully boards a freight train to ride without paying fare,
and a brakeman orders him to jump of! while the train is moving
rapidly, and the boy jumps, for fear of b^nng thrown off; and is injured^
the company is liable: Kansas City etc. R. R. Co., 36 Kan. 6o5; 59 Am.
Rep. 596, and note. So, if a bov nine or ten years old sets on the steps
of a railroad car in motion, holding on totherailing, and a servant of the
company, employed to clean and secure the cars and keep intruders out
of them, kicks the boy's hand, thus loosening his hold, and he falls
under the cars and is killed, the company is liable: Northwestern R. R.
Co. V. Hack, 66 III. 2'iS. So if a boy of sixteen jumps on the platform
of a car moving at the rate of ten miles an hour through the streets of
a city, to ** catch a ride," ami the conductor pushes him off, or he jumps
off in obedience to a sh irp command by the conductor, and is injure I,
the comniny is lial>le m eit'i-r event : Kline v. C.*ntral Pac. R. R. Co.,
87 Cal. 400; 93 Am. Dec. 2S2. A street railway company is liable lot



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June, 1895.] Barnes v, Shreveport City B. R. Ca 419

an Injury to a child compelled by the driver to jump from the platform
of a car while in motion, although a trespasser: Biddle v. Heatouville
etc. By. Co., 112 Pa. St. 551. If a child ten years of age is ordered to
get off of a movins; car, its obedience would be naturally expected, with*
out regard to the risk it might incur ; and, in respect to a child so young,
the command would be equivalent to compulsion. It is a mistake to
hold that because a child is a trespasser it may therefore be ejected
from a car in motion in such a manner as to endanger its life or limbs.
Even where a child is permitted by the driver to ride upon the front
platform, from which, without his knowledge, it attempts to leave the
car whilst in motion, and is injured, the railroad company is liable for
the resulting injuries. The child in such a case is a trespasser, though
it is upon the platform by the driver's invitation, as he has no authority
to give such invitation. Extra precautions are not required in antici-
pation of the intrusions of trespassers, even though they are children,
but when they do so intrude, and are known to be man improper place,
they must not be so wh oil v neglected as toendanser their lives or limbs.
" Any other doctrine would so ill accord with Christian civilization as
to render its maintenance impossible": Note to Kansas City etc. R. B.
'Co. V. Kelly, 59 Am. Bep. ($03, 604.

Injury to Child Caused by Dangerous yfachinery. ^-It is held in
.New York, Massachusetts, and perhaps in some other states, that if
a child goes upon the premises of another person, and is there by
sufferance only, or as a mere licensee or volunteer, and is there injured
by coming in contact with dangerous machinery, it cannot recover dam-
a|;es from the owner therefor, as he owes the child no duty of active
vigilance, but only the duty not to injure it intentionally, or bv a fail-
ure to exercise reasonable care: Walsh v. Fitchburg K. B. Co., 14&
N. Y. 301; 45 Am. St. Rep. 615; Shea v. Gurney, 163 Mass. 184; 47
Am. St. Bep.446.

Bnt the better view is that children, wherever they go, must be ex-
pected to act upon childish instincts and impulses; and others who are
chargeable with a duty of care and caution toward them must calcu-
late upon this, and take precautions accordingly. If they leave exposed
to the observation of children anything tempting to them, and which
they in their immature judgment mignt be expected to play with or
handle, they should expect that liberty to be taken : Powers v. Harlow,
53 Mich. 507; 51 Am. Rep. 154, per Cooley, G. J. Hence, though a
child of tender years meeting with injury on the premises of a private
owner is a technical trespasser, yet the owner is liable if the things
causing injury have been left exposed and unguarded, and are of such
a character as to be an attraction to a child, appealing to his childish
curiosities and instincts. So it follows that if the land of a private
owner is in a thickly settled community, and has upon it dangerous
machinery, or a dangerous pit or pond, of such character as to be attrao*
tive to children of tender years, incapable of exercising ordinary care,
and he has notice of its attractions for children of that class, he is under
obligation to use reasonable care to protect them from injury when
coming upon such premises, thoujsh thev may be trespassers thereon:
Pekin v. McMahon, 154 111. 141 ; 45 Am. St. Rep. 114; Barrett v. South-
ern Pac. Co., 91 Gal. 296; 25 Am. St. Rep. 188; Haesley v. Winona etc.
B. B. Co., 46 Minn. 233; 24 Am. St. Rep. 220; note to Cauley v. Pitts-
burg etc. By. Co., 40 Am. Rep. 667, 668; note to Gilson v. Delaware
etc. Canal Co., 36 Am. St. Bep. 835, discussing liability for injuries
received by children; note to Kansas etc. By. Co. v. Fitzsimmons,
31 Am. Bep. 209. It is for the jury to determine whether the owner
of dangerous machinery is guilty of negligence, and answerable to a
child for injuries suffered, and it seems that the liabilitv of one who
has left dangerous machinery unguarded and unprotecten, ifor injuries
suffered by a child of immature years, is not affected by the fact that
the machinery was set in motion by the nectligence of older children:
Barrett v. Southern P^c. Co., 91 Gal. 296; 25 Am. St. Bep. 186; Calla-
ban V. Eel River etc. B. B. Co., 92 Gal. 89. In connection with this,

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420 Babnbb v. Shbbyepobt City B. R. Co. [Louisianai

compare the leading English case, Lynch ▼. Nurdin, 1 Q. B. 29, which
illastrates the principle. The facts in that case were these: The de-
fendant's carman went into a house, leaving his horse and cart stand-
ing in a street for aboat half an hour without any person to take care
of them. The plaintiff, a lad about seven years or age, with several
other children, was playing with the horse around the cart. During
the carman's absence he got upon the cart. Another bov led the horse
on while the plaintiff was attempting to get off the shaft. The plain-
tiff fell and was run over by the wheel, and his leg broken. The court
was asked to direct the jury that there was no evidence in support uf
the plaintiff's case, his own negligence having brought the mischief
upon him. This request was refused, and it was left to the jury to sav:
1. Whether it was negligence in the defendant's servant to leave tne
horse and cart for halt an hour in the manner disclosed; and 2.'
%Vhether that negligence occasioned the accident. In that case Lord
Denman, C. J., observed: **If I am guilty of negligence in leaving
anything dangerous in a place where I know it to be extremely prob-
able that some other person will unjust itiably set it in motion, to the
injury of a third, and if that injury should be so brought about, I pre-
Bume that the sufferer might have redress by action against both or
either of the two, but unquestionahly against tne first." The question
as to whether premises are sufficiently attractive to entice children into
danger, and to suggest to the owner the probability of the occurrence
of an accident, is for the jury: Pekin v. AioMahon, 154 111. 141 ; 46 Am.
8t. Rep. 114. The plaintiff cannot recover without proof that the place
was attractive to children, or that to defendant's knowledge they re-
sorted to the premises for amusement, pleasure, or curiosity: Schmidt
V. Kansas City etc. Co., 90 Mo. 284; 59 Am. Rep. 16. In Masaachu-
eetts a wrongdoer and trespasser cannot recover for injuries which are
the joint consequence of his own wrong and the negligence of another,
and this remains true though the f|erson injured is a child and only
does what children of his age and intelligence mav reasonably be ex-
pected to do: Gay v. Essex etc By., 159 Mass. 238; 38 Am. St. Bep.
415,

It must be observed, however, that all machines are not dangerous,
and that the duty of protection to children is not cast upon every mem-
ber of the community except their parents. Besides tnis the rale im-
posing upon the owner of premises the duty of taking precautions to
avoid infant trespassers from being injured must not be carried into
absurdity. Thus in Wood v. Independent School District, 44 Iowa, 27,
it was held not negligent to leave a well-drilling machine anlocked and
unguarded in the yard of a public schoolhouse, whereby one of the
young investigators of science was injured, outside of the school "drill."
The court said : <' We are not prepared to hold that every perfon having
upon his premises machinery, tools, or implemedta which woald be
dangerous playthings for chilaren, and in their nature afioiding spedai
temptation to children to play with them, is under obligation to ffoard
them in order to protect himself from liability for inJoneB to chudren
received while playing with them, although the children were rightfully
on his premises. It would be improper to burden the mechanical in-
dustries of the country by such a rule. Without holding, therefore,
that there may not be pieces of machinery so peculiarly dangerous that
a right of action would exist at common law for injunea received from
them if left unguarded, we do not think the drilling-machine in ques-
tion is such machinery." So, if a child, while trespassing upon the
open premises of a factory where type-setting machines are manufac-
tured, and there purloining type metal or scrap iron belongine to the
manufacturer, is injured by the sudden discharge of water ana steam
from a pipe connected with an engine in the factory, the presence of
the child being unknown to the engineer, the manufacturer not owing
«ny duty to the child, under such circumstances, is not liable in an ac-
tion by its father to recover damages for the injury and for the amount



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Jane, 1895.] Barnes v. Shbevepobt City R. R. Co. 421

expended for mediciDes and medical attention : Mergentbaler t. Kirby,
79 Md. 182; 47 Am. St. Rep. 871.

Injury to Child — Accidents on Railroads ^ Highway i, etc. — It has
been beld that railroad cars and similar madiinery are not ''dan-

faroas machines'' within the meaning of the rale in what are
nown 88 the "turntable cases"; and that if a person, no mat-
ter what his age, is upon tlie track or yard of a railroad company
without inducement or invitation, express or implied, for him to enter,
and be is neither a passenger nor on his way to become one, but is there
merely for his amusement and using the track or yard as a playground,
he is a mere intruder and trespasser, to whom the railway company
owes no duty, except the negative one not maliciously, or with gross
or reckless carelessness, to run over or injure him. Hence, in case of
an accident, the company is not liable for injury to one so upon its
property, unless it is guilty of gross negligence: Note to Witte v. Stifel»
47 Am. St. Rep. 673; McMuUen v. Pennslyvania R. R. Co., 132 Pa. St.
107; 19 Am. 8t. Rep. 591; Philadelphia etc. R. R. Co. y. Mummell, 44
Pa. St. 875 ; 84 Am. Dec. 457 ; Central R. R. etc. Co. v. Yaughan, 98 Ala.
209; 30 Am. St. Rep. 50, and note.

According to this line of cases, if the defendant company has no
reason to suppose that either man, woman, or child may be upon a rail-
road track wnere an accident to a child occurs, it has a ri^ht to presume
that no one will be on it, and to act upon the presumption. Blowing
the whistle of the locomotive, or making any otner signal, is not a duty
owed to persons in the neighborhood, and consequently the fact that
the whistle is not blown, or a signal made, is no evidence of negli*
eence : Philadelphia etc. R. R. Co. ▼. Hummell, 44 Pa. St. 375; 84 Am.
Dec. 457.

But while a railway company may nofr be required to fence its track
to keep trespassers away (note to Witte v. Stifel, 47 Am. St. Rep. 674),.
or to make Its premises a safe playground for young children strictly
non sui juris (Heasley v. Winona etc. R. R. Co., 46 Minn. 233; 24 Am^
St. Rep. 220), it is the better view that the company does owe some
dutv, even to a trespassing child, and that the mere fact that a young
child is on a railroad track where it has no right to be, does not relieve
a street railway company from liability for its own negligence in injur-
ing the child, thougn such negligence is not what might be termed
wanton or gross: Johnson v. Reading City etc. Ry., 160 Pa. St. 647; 40
Am. St. Rep. 752; Galveston City R. R. v. Hewitt, 67 Tex. 478; 60
Am. Rep. 32.

This is founded upon the humane principle that a child of such years
that it is conclusively presumed to be incapable of committing a crime
cannot, if it strays or sits upon a railway track, be regarded as a tres*
passer to whom no duty is due and for whom no lookout need be kept i
Gunn V. Ohio River R. R. Co., 86 W. Va. 165; 32 Am. St. Rep. 842.
Therefore, according to this line of cases, a railway corporation owes^
with respect to children of tender years and immature judgment, at
least the duty which it owes to domestic animals straying upon its
tracks, to wit, the duty of keeping a reasonable lookout to discover
whether they are on the track, as well as to avoid injury to them after
they are seen. A violation of this duty makes the company liable :
Gunn T. Ohio River R. R. Co., 36 W. Va. 165; J32 Am. St. Kep. 842;
Indianapolis etc. Ry. Co. v. Pitzer, 109 Ind. 179; 58 Am. Rep. 387;
Bellefontaine etc. R. R. Co. v. Snyder, 13 Ohio St. 399; 98 Am. Dec.
175; North Pennsylvania R. R. Co. v. Mahoney, 57 Pa. St. 187.* Thus
a boy seven years old, without the fault of his parents, wandered to a
railroad station, entered a passenger train and was carried to a distant
station, where the conductor put him off, leaving him in charge of no
one, and giving no instructions concerning him. The child, left to him-
self, went upon the track near a highway crossing, where he could be
seen for three-fourths of a mile by persons in charge of a train coming
from the south. A freight train moving northward, in the daytime,
on an ascending grade, where it could easily have oeen stopped, ran



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122 Barnes v. Shbbyepobt City R. R. Ca [Louisianai

tipoD and killed the child. The railroad company was held to be liable!
Indianapolifl etc. Ry. Co. y. Pitser, 109 Ind. 179; 58 Am. Rep. 387.

Whether the servantfl of a railway corporation in charge of a train
which ran over children of tender yearB, playins, aitting, or being on
the track, exercised ordinary care in keeping the requisite lookoat to
discover such children, or, when discovered, used such measures as
were proper, under the circumstances, to avoid injuring them, is, how-
ever, a question which can rarely, if ever, be determined aa a matter
of law, and should, therefore, be submitted to the jury: Gunn v. Ohio
River R. R. Co., 3>3 W. Va. 165; 32 Am. St. Rep. 842; Kay v. Pennsyl-
vania R. R. Co., 65 Pa. St. 269; 3 Am. Rep. 628; Galveston City R. R.
Go. V. Hewitt, 67 Tex. 473; 60 Am. Rep. 32. For instance, if children
of tender years are run over and killed by a railway train while sittine
•on or near the track, and the evid nee tends to prove that thev ooula
bave been seen in time to avoid injuring them had a reasonable look-
-out been kept; that the fireman had been putting coal on the fire, and
did not see them until too late to stop the train before reaching them,
•and there is no evidence as to whether the engineer was keeping a look-
out or not, and a conflict of evidence aa to whether danger signals were
lounded or not when the children were seen, a proper case is made for
submission to the jury, and it is error for a court to direct a nonsuit:
Gunn V. Ohio River R. R. Co., 36 W. Va. 165; 32 Am. 8t. Rep. 842.
So if the negligence alleged consists of a positive act of carelessness in
sending a car around a curve out of sight, on a descending grade, at a
place where persons might be looked for from the permissive use suf-
tered by the company, the question of neglisenoe m injuring a child
nineteen months old, which had strayed from Its mother to the railroad
track, is for the jurv: Eaj v. Pennsylvania R. R. Co., 65 Pa. St. 269;
^8 Am. Rep. 628. Wlien, m an action to recover for injuries to a chili
Tun over by a street car, the evidence is conflicting as to the length of
time the child was on the track, and whether the driver of the car
could have seen it, had he been looking at the track, in time to stop
before reaohins the child, the question of negligence is for the jury to
determine: Jonnson v. Reading City etc. Ry., 160 Pa. St. 647; 40 Am.
St. Rep. 752.

"Street railroads," as said in Driscoli v. Market Street etc. Ry. Co.,
97 Cal. 553, 33 Am. St. Rep. 203, "are an established feature of modem
city life. They are a convenience and a necessity to all classes of people,
and are desired b^ all ; but their operation on crowded streets is neces-
sarily attended with considerable danger to pedestrians, a danger which
all people are bound to know, and against which they should protect
themselves by the use of at least reasonable caution. While, there-
fore, the owners of these railroads are to be held to due care in the
management of their lines, they, when ezercisint; such care, are not
responsible in damages to a person who, in a careless or reckless or ab-
sent-minded way, walks suddenly in front of a moving car, and is
injured before there is time to stop it. The person in charge of a car,
with a clear track before him, has a right to assume that people will
not suddenly undertake to cross in front of it; otherwise he could not
make any headway, and no street car could be successfully ox>erated,
either for the profit of the owner, or the convenience of the public; and
the general rule is, that where the negligence of the injured party la a
contributing, proximate cause of the accident, he cannot recover dam-
ages ; but whether or not his.negligence did so contribute in any particu*
lar case is generally one around which conflicting evidence will be
gathered; and in such case a railroad company which was itself guilty
of negligence at the time of the accident cannot often expect to be re-
lieved from an unfavorable verdict." This case was one of an injury
to an adult, but a street railway company is bound to exercise every
deeree of care to discover and avoid injury to a young child on its track:
Galveston City R. R. Co. v. Hewitt, 67 Tex. 473; 60 Am. Rep. 32.
A cable railw.iy company, operating dangerous machinery at a rapid
speed on and along the public streets of a city, is in law bound to know



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Jane, 1895.] Barnes v. Shrevepobt City R. R. Ca 423

that men, women, and children haye an equal right to the use of the
highway, and will be apon it, and its servants are bonnd to be on the
lookout, and to take all reasonable ipeasures to avoid injuries to per-
sons who may be upon thn streets: Winters v. Kansas City etc. Ry. Oo.,
99 Mo. 509; 17 Am. St. Bep. 691; Johnson v. Reading Ci^ etc. Ry^
160 Pa. St. 047 ; 40 Am. St. Rep. 762.

A child injured by running in front of a cable-car cannot, of course,
recover, if the gripman operating the car was free from negligences
Winters v. Kansas City etc. Ry. Co., 99 Mo. 609; 17 Am. St. Rep. 691;
but in an action against a motor company for negligently running over
a child of tender years on or near a crossing, the defendant is not en-
titled to a nonsuit on the ground of the insufficiency of the evidence,
when there is evidence showins that the gripman did not keep such a
lookout as the circumstances demanded, nor give any warning of ap-

E roach, and that, after discovering the child on the track, the car might
ave been stopped sooner, if the brakes had been in proper condition :
Mitchell V. Tkusoma Ry. etc. Co.. 9 Wash. 120.

Injury to Child OecoiUmed by WeO$, Bxeavaiion$t Openings f Pools



Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 49 of 121)