Carson v. Chicago, Rock Island & Pacific Railway Co.
65 N.W. 831
Iowa
1896
Check Treatment
Granger, J.

The plaintiff, a minor of the age of twelve years, brings this action by his next friend, to recover for an injury reсeived while playing on a turntable owned by the defendant company. The turntable is situated on the depot grounds of the defendant at Pella, Iowa, and is something over two hundred *584feet from the depоt, and about one hundred and twenty-five feet from a lot or space used as a playground, and, to quite an extent, as a public resort. The table is between the company’s tracks and is in no way сonnected with the playground or any public way by a traveled track or path. The table was аt times locked, and at others unlocked. It appears from the evidence that boys frequently visited it to play, and there is some evidence tending to show that the agent at Pella knew of this, but the faсt is much in doubt. The table is a heavy piece of machinery for the turning of engines, but so constructed thаt the boys going there to play could, before getting on, put it in motion and then get on and ride. On the evening that plaintiff! was hurt, he, with several other boys, went to the table, after dark, — some of the other boys rеaching there before he did, — and when he came to the table it was in motion. He helped to рush it a little and then jumped on the table, to ride. After getting on he walked across the table, along thе track thereon, as we understand; and when the rails on the turntable came in line with the rails leading from the table, and while it was still in motion, plaintiff, in stepping off the table, got his foot between the end of the table and the side of the pit, and was injured. At the close of the plaintiff’s testimony the defendant moved thе court to direct a verdict for it on several grounds, among which werfirst, because there was no negligence on the part of the ‍​‌​‌​‌‌​‌‌​‌‌‌​​‌​​‌​‌​​​​‌​​‌​‌​‌​‌​​​​‌‌​​​‌‌‌‍defendant of which plaintiff can complain; and, second, the evidence shows affirmatively that the plaintiff was guilty of contributory negligence causing his injury. The court overruled the mоtion, and error is assigned on the ruling.

Unless we overrule the holding in Merryman v. Railway Co., 85 Iowa, 634 (52 N. W. Rep. 545), we must reverse this case, for the cases cannot be distinguished *585on principle. The holding in that case has the support of both reason and authority, and it ‍​‌​‌​‌‌​‌‌​‌‌‌​​‌​​‌​‌​​​​‌​​‌​‌​‌​‌​​​​‌‌​​​‌‌‌‍does not sеem to be doubted. There is, however, an effort to distinguish the cases. In the Merryman Case the boy was thirteen years old. He jumped upon the table and lay down with his feet projecting beyond the end of the table, so that one leg was caught between the table and the embankment, and he was injured. The court below seems to have been in much doubt on the question, and observed this distinction between the cases: that in the Merryman Case the boy allowed his legs to project over the turntable, while in this case the injury resulted in an attemрt to step off the table when it was in motion. It is true that in the Merry-man Case the legs could not project over the end of the table as it passed, a given point, without injury, and it appears that the boy knew that, if he only gave it thought, which he did not do, because he was having fun. It is also true in this case that the plaintiff knew, if he stopрed for an instant to think, that he was liable to get hurt by being caught between Athe end of the table and the side of the pit. But ‍​‌​‌​‌‌​‌‌​‌‌‌​​‌​​‌​‌​​​​‌​​‌​‌​‌​‌​​​​‌‌​​​‌‌‌‍he did not think about it. This is the conclusion from his testimony. In fact, it is what he states. A lengthy examination сaused some confusion of statements, but the conclusion is not doubtful. In this case it was not certain that an injury would result from an attempt to get off while the table was in motion, but the injury was certain to result if therе was a failure to step over the opening. In the Merryman Case the injury was certain to result if the legs were projecting at a given point. There is no practical distinction. Both are cases grounded on а failure to give attention to danger when it was perfectly apparent, and the facts constituting the danger absolutely known. The plaintiff was a boy twelve years of age, lacking a single day. The record shows him to have been a *586boy of good ability, and usually well informed. He was familiar with tbe table, having played there before; and tbe case in such respects is not different from tbe Merryman Case. In that case, it is true, tbe boy was one year older, but tbe rule ‍​‌​‌​‌‌​‌‌​‌‌‌​​‌​​‌​‌​​​​‌​​‌​‌​‌​‌​​​​‌‌​​​‌‌‌‍of diligence is applied to boys under twelve yeаrs of age. In Masser v. Railway Co., 68 Iowa, 605 (27 N. W. Rep. 776), tbe rule is applied to a boy eleven years of age. In many cases it is extendеd even further. In tbe Merryman Case it is said, “Tbe law imposes upon minors the duty of giving such attention to their surroundings, and care to avoid danger, as may be fairly and reasonably expected from persons of their age and capacity.” That rule, applied to this case, is conclusive of it; for it cannot well be said but that it might fairly and reasonably be expected that a boy twelve years of age, of usual intelligеnce and information, would understand tbe importance of observing care in being upon a moving turntаble in tbe night, and stepping therefrom over an open space, into which be might step and be injurеd.

Tbe question of tbe negligence of tbe defendant we need not consider, inasmuch as tbe facts as to contributory ‍​‌​‌​‌‌​‌‌​‌‌‌​​‌​​‌​‌​​​​‌​​‌​‌​‌​‌​​​​‌‌​​​‌‌‌‍negligence are so conclusive of tbe case. A" verdict should have been directed for tbe defendant.— jReversed.