78 N.Y.S. 893 | N.Y. Sup. Ct. | 1902
The case here cannot be distinguished in principle from Walsh v. Fitchburg R. R. Co., 145 N. Y. 301.
There a turntable was located upon the premises of the defendant in an open space in the city of Troy where pedestrians were in the habit, without any special consent or objection of the defendant, of passing over this space near the turntable in going from one point or street in the city to another. It was also in proof that children were in the habit of playing upon the turntable, some riding upon it while others revolved or turned it by getting into the pit in which it was located and pushing it around. The plaintiff, a child of five years of age, was injured while playing and riding upon the turntable with other children. It was held by the Supreme Court that if a defendant erects and maintains upon his own land for his own use a structure capable of inflicting injury
In reversing the judgment of the court below, Judge Peckham, delivering the opinion of the court, said that the defendant had not been shown guilty of a violation of its duty, nor had a question been made for the jury in that respect by proof that it used the turntable in the manner it did. That some means might have been adopted which possibly might have prevented the happening of the accident, that the table might have been kept so fastened or locked when not in use that people could not turn it without unfastening or unlocking it; continuing, the learned judge said: “ But was defendant bound to do so ? Did it owe any such duty to the public or to this plaintiff ? The turntable was on its own land; it was used by the defendant for the sole purpose of properly conducting its own business; it was a fit and proper machine for that purpose; it was not of the nature of a trap for the unwary; it was not built in any improper or negligent way with reference to the transaction of the. business of the defendant. What further duty did it owe to those who had.no business upon its land, who, came there unasked and whose presence was simply tolerated ?
“ Upon the question of alluring plaintiff, we do not think it can bo correctly said defendant either enticed or allured him to come upon its land.
“ The whole case in this respect rests upon the doctrine that the turntable was, as to children of tender years, a dangerous and at the same time an enticing machine, one which, when seen, would inevitably and infallibly allure children to come upon it for the purpose of playing upon it, and that the natural and probable result of such play would be the injury of the child. Hnder such circumstances it is claimed that a person owning such a machine, although it be used on his own land, is bound to exercise extra vigilance for the purpose of preventing injury to children who come upon the, defendant’s land allured by the machine and ignorant of its dangers. We do not think the facts of this case bring it within any such principle.”
And that was¡ the decision of the court.
Motion denied.