| Minn. | Jan 11, 1875
In the elaborate opinion of the court below, which formed the basis of the argument for the defendant in this court, the case is treated as if the plaintiff was a mere trespasser, whose tender years and childish instincts were no excuse for the commission of the trespass, and who had no more right than any other trespasser to require the defendant to exercise care to protect him from receiving injury while upon its turn-table. But we are of opinion that, upon the facts stated in the complaint, the plaintiff occupied a very different position from that of a mere voluntary trespasser upon the defendant’s property, and it is therefore unnecessary to consider whether the proposition advanced by the defendant’s counsel, viz, that a land-owner owes no duty of care to trespassers, is not too broad a statement of a rule which is true in many instances.
While it is held that a mere licensee “ must take the permission with its concomitant conditions, it may be perils,” (Hounsell v. Smith, 7 C. B. (N. S.) 731; Bolch v. Smith, 7 H. & N. 836,) yet even such licensee has a right to require that the owner of the land shall not knowingly and carelessly put concealed dangers in his way. Bolch v. Smith, per Channell and Wilde, B B.; Corby v. Hill, 4 C. B. (N. S.) 556, per Willes, J. .
And where one goes upon the land of another, not by mere license, but by invitation from the owner, the latter owes him a larger duty. “ The general rule or principle applicable to this class of cases is that an owner or occupant is bound to keep his premises in a safe and suitable condition for those who come upon and pass over them, using due care, if he has held out any inducement, invitation or allurement, either express or implied, by which they have been led to enter thereon.” Per Bigelow, C. J., in Sweeny v. Old Colony and Newport R. Co., 10 Allen, 368, reviewing
Now, what an express invitation would be to an adult, the temptation of an attractive plaything is to a child of tender years. If the defendant had left this turn-table unfastened for the purpose of attracting young children to play upon it, knowing the danger into which it was thus alluring them, it certainly would be no defence to an action by the plaintiff, who had been attracted upon the turn-table and injured, to say that the plaintiff was a trespasser, and that his childish instincts were no excuse for his trespass. In Townsend v. Wathen, 9 East, 277, it was held to be unlawful for a man to tempt even his neighbor’s dogs into danger, by setting traps on his own land, baited with strong-scented meat, by which the dogs were allured to come upon his land and into his traps. In that case, Lord Ellenborough asks, ‘ ‘ What is the difference between drawing the animal into the trap by his natural instinct, which he cannot resist, and putting him there by manual force ? ’ ’ And Grose, J., says, ‘£ A man must not set traps of this dangerous description in a situation to invite his neighbor’s dogs, and, as it were, to compel them by their instinct to come into the.traps.”
It is true that the defendant did not leave the turn-table unfastened, for the purpose of injuring young children; and if the defendant had no reason to believe that the unfastened turn-table was likely to attract and to injure young children, then the defendant would not be bound to use care to protect from injury the children that it had no good reason to suppose were in any danger. But the complaint states that the defendant knew that the turn-table, when left unfastened, was easily revolved ; that, when left unfastened, it was very attractive, and when put in motion by them, dangerous, to young children : and knew also that many children were in the habit of going upon it to play. The defendant therefore knew that by leaving this turn-table unfastened and unguarded, it was not merely inviting young children to come upon the turn-table, but was holding out an allure
We agree with the defendant’s counsel that a railroad company is not required to make its land a safe play-ground for children. It has the same right to maintain and use its turntable that any landowner has to use his property. , It is not an insurer of the lives or limbs of young children who play upon its premises. We merely decide that when it sets before young children a temptation which it has reason to believe will lead them into danger, it must use ordinary care to protect them from harm. What would be proper care in any case must, in general, be a question for the jury, upon all the circumstances of the case.
The position we have taken is fully sustained by the following cases, some of which go much farther in imposing upon the owner of dangerous articles the duty of using care to protect from injury children who may be tempted to play near or meddle with them, than it is necessary to go in this case. Lynch v. Nurdin, 1 Q. B. 29 ; Birge v. Gardiner, 19 Conn. 507" court="Conn." date_filed="1849-07-15" href="https://app.midpage.ai/document/birge-v-gardiner-6576219?utm_source=webapp" opinion_id="6576219">19 Conn. 507 ; Whirley v. Whiteman, 1 Head, 610.
It is true that, in the cases cited, the principal question discussed is not whether the defendant owed the plaintiff the duty of care, but whether the defendant was absolved from liability for breach of duty, by reason of the fact that the plaintiff was a trespasser, who, by his own act, contributed to the injury ; and the distinction is not sharply drawn between the effect of the plaintiff’s trespass, as a bar to his right to require care, and the plaintiff’s contributory negligence, as a bar to his right to recover for the defendant’s failure to exercise such care as it was his duty to use. But as a young child, whom the defendant knowingly tempts to
In Hughes v. Macfie, 2 Hurlst. & Coltm. 744, and Mangan v. Atterton, L. R. 1 Exch. 239, cited by defendant’s counsel, there was notMng to show that the defendants knew or had reason to apprehend that the cellar lid in the one case, or the crushing machine in the other, would be likely to attract young children into danger. It must be conceded that Hughes v. Macfie is not easily to be reconciled with Birge v. Gardiner, and that Mangan v. Atterton seems to conflict with Lynch v. Nurdin; but whether correctly decided or otherwise, they do not necessarily conflict with our decision in this case.
Much reliance is placed by defendant ou Phila. & Reading R. Co. v. Hummell, 44 Penn. St. 375, and Gillis v. Penn. R. Co., 59 Penn. St. 129. In the first of these cases, the plaintiff, a young child, was injured by coming upon the track while the cars were in motion. The only negligence charged upon the defendant was the omission to give any signal at or after the starting of the train. If the plaintiff
It was not urged upon the argument that the plaintiff was guilty of contributory negligence, and we have assumed that the plaintiff exercised, as he was bound to do, such reasonable care as a child of his- age and understanding was capable of using, and that there was no negligence on the part of his parents or guardians, contributing to his injury.
Judgment reversed.