29 Wash. 139 | Wash. | 1902
The opinion of the court was delivered by
Appellant instituted this action against, respondent to> recover damages on account of the death of her son, which, it is alleged, was caused by the wrongful and negligent act of respondent. At the trial the court granted a motion for non-suit. The motion was based upon two’ grounds: Hirst, that appellant had failed to show
The accident which caused immediate death occurred August 6, 1901. The deceased, Oscar Perry Dix, lacked a little more than one month of being twelve years of age-, lie was the son of Elihu Dix and the appellant, who were formerly husband and' wife. Some time prior to June, 1897, the parents separated; the appellant keeping the two children of the marriage, — the son above named and a daughter. On the 14th of June, 1897, appellant procured a decree of divorce from her said husband, and by. the terms of the decree the care and custody of the daughter was awarded to- appellant; and that of the son to the husband. After the separation, and before the divorce, the mother mainly supported both the children, the husband having contributed about $20 toward their support-. After the divorce the: father took the boy and kept him about two weeks^ when he brought him back to his mother and told her he could not get along with him, and said if she would keep him he would support him. Soon after-wards the husband gave the mother $10 toward the support of the boy, and has never contributed any sum since. The mother*, who afterwards remarried, continued to support the boy for a period of more than three years, and until the time of his death. The location of the father is unknown to her, and she has been unable to discover where he is. Under these circumstances, the respondent contends that appellant cannot maintain this action, for the reason that the father was charged with the lawful care and custody .of the boy. Section 4829, Bal. Code, provides as follows:
*142 “A father, or in case of the death or desertion of his family the mother, may maintain an action as plaintiff for the injury or death of a child, and a guardian for the injury or death of his ward.”
It will hei observed that, by the terms of the statute the mother may maintain the action in the event the father has deserted the family. It is contended by respondent that by the divorce the family status was broken, and that there can be noi longer a desertion of the family, within the meaning of the statute. The facts as stated, we think, show at least an abandonment of the boy by the father, lie not only withheld from the boy his own companionship., but wholly neglected to contribute, to his support. It was his primary duty to support his child, independently of that cast upon him by the decree of divorce. The boy being left with his mother, the duty of his support and education was cast upon her. As a natural son, he was, in legal contemplation, a part of his father’s family. The family status between mother and child, as constituted by natural relationship., was not broken by the divorce, and their companionship as members of the same household continued, with only an interruption of two. weeks. The family status as thus constituted was left bv the father without any contribution on his parti toward its support. This we believe was not only an abandonment of the child, but also, of the family, within the meaning of the statute. By his abandonment the father has forfeited his right to maintain this action, and it belongs to the mother. The first ground stated in the motion for non-suit should therefore have been denied. Whether the superior court intended to. deny the motion on said ground does not appear from the record. It may have been the intention to grant the motion upon the other ground only.
It is not contended by appellant that there was- negligence in the operation of the train which caused the death, but she urges that respondent maintained a dangerous , place, with danger inherent in the premises and in the
The above is a generally recognized rule, and is fully sustained by authorities cited by appellant. If the deceased boy came within the class of guests invited expressly or by implication, then the .authorities are in point here, It is not conceivable, however, that one should in the first instance understand that he was invited to cress the switch tracks which were in constant use, merely because a show was exhibiting near by, and when other plain and safe ways of approach were at hand. In any event, when this boy was told not to go there, he knew he was not invited; and instead of going the safe way as advised by respondent, he rushed into immediate danger. The cases cited by appellant related to some inherent defect in the prem
In the case of Bennett v. Railroad Co., 102 U. S. 577, the injured person fell through a hole in the depot floor, which had been left unguarded and unlighted. In Powers v. Harlow, 53 Mich. 507 (19 N. W. 257, 51 Am. Rep. 154), dynamite was left exposed upon the premises, where children ignorant of its nature could easily find it and handle it. In Railroad Co. v. Morey, 47 Ohio St. 207 (24 N. E. 269), a ditch was left unguarded and unlighted in the night time. Similar conditions existed in Curtis v. Kiley, 153 Mass. 123 (26 N. E. 421). In Tucker v. Draper, 62 Neb. 66 (86 N. W. 917, 54 L. R. A. 321), a small child was killed by falling into an oppn and unguarded well. The conditions considered in the above eases were inherent defects in the premises and were hidden from and unknown to the injured persons. In the case at bar the premises were not defective. There were no hidden dangers inherent in them, and they were being used for lawful purposes. Any danger which existed was open and apparent, and was the unavoidable consequence of the customary and lawful use of the premises if one placed himself in a position to encounter it.
Appellant also cites what are known as the “turntable cases.” These eases are based upon the theory that a turntable is a machine of such a nature as to attract children to ' play with it, and, being inherently dangerous for children to handle, negligence is predicated upon the failure to lock it or securely fasten it so that it cannot be moved by children. The same principle has been applied where other structures or conditions existed, but the doctrine has not been uniformly adopted by American courts, and it has, indeed, been severely criticized. In Beach on Contributory Negligence (3d ed.), § 51a, the author observes that
We are therefore unable to find that negligence on the part of respondent was shown. The accident was an unfortunate one for appellant, as the mother of the boy; but we are unable to see that respondent is chargeable therer with when viewed in the light of safe and sound principles. We believe the court did not err in granting the non-suit on the ground that negligence of respondent was not shown.
Error is assigned upon the court’s refusal to admit certain evidence, in the way of an identified show bill, offered for the purpose of showing an inducement to the public to go upon respondent’s premises. We are unable to find that the offered exhibit disclosed the place where the coming show would exhibit, further than it would be in the city of Tacoma. It was, however, admitted by the answer that the grounds were leased for the purposes of the show, which showed that respondent had notice that the public would be in attendance. We think the offered evidence was therefore immaterial.
Believing that the court did not err, the judgment is affirmed.
Eeavis, O. J., and Fullerton, Anders, Mount and Dunbar, JJ., concur.