Thе third instruction given for the plaintiffs in this case was clearly erroneous. This instruction was “that if the jury believe from the evidеnce that plaintiffs negligently permitted their son James R. Coons, to wander from his home and to go upon the turn-tablе of the defendant, and was killed by said turn-table, and that said James R. was so young and inexperienced as not to possess sufficient judgment to warn him of the danger of the place or character of the machinery, and that he was killed by negligence aiid carelessness of defendants in not properly guarding and protecting said turn-tаble, and beeping children from playing on the same, they will find for plaintiff.” This instruction seems to have been based upon certain remarks of Mr. Justice Hunt in the case of Railroad v. Stout (17 Wallace), where the boy injured, who was 6 years old, was thе plaintiff, and the defense disclaimed any defense resting on the gi’ound that plaintiff’s parents were negligent,, or that the plaintiff was negligent, as he was only six years old. But
As the boy killed in this case was 9 years old, the court gave the further instruction that “ if they believe from the evidence that James R. Noons was of sufficient age and discretiоn, and of sufficient judgment to know the dangerous character of the defendant’s turn-table, and was killed
It is objected, in this case, that the plaintiff’s witnesses were allowed to state, in answer to direct questions, that they thought the turn-table a dangerous 7 ,, ,n .. n -, machine, and one oi the witnesses was allowed to statе that he thought the turn-table dangerous, and that it was gross carelessness for the company to leave it unfastened or without covering. Several witnesses were also asked as to the custom of railroads generally, аs to keeping their turn-tables locked. The witnesses gave their opinions on both these points. That such testimony wаs inadmissible, we suppose hardly needs any citation of authorities. It is true that the testimony, exclusive of this objeсtionable portion of it, cleai’ly showed that the turn-table was a dangerous machine to be used by children, and the death of the plaintiff’s child might be considered sufficient of itself to establish that fact, and it might he inferred that to leave such machinery, in the midst of a village of 1,000 inhabitants, without any protection, by locks, or floors, or covеring, was gross negligence on the part of the defendant corporation. This -was, however, the question the jury were called upon to decide. How far their verdict might have been influenced by the opinions of these witnesses, who did not pretend to he experts, it is impossible for us to say.
The custom of other railroads was perfectly immaterial; if that custom had been the reverse of what the witnesses stated it to be, it would certainly have furnishеd no defense to the defendant. It was the province of the witnesses to state facts, and for the jury to draw their inferences from these facts. The first instruction given by the court was substantially correct, and we would not reversе the judgment because of the
Reversed.