Macon, Dublin & Savannah Railroad v. Jordan

34 Ga. App. 350 | Ga. Ct. App. | 1925

Bell, J.

(After stating the foregoing facts.)

The plaintiff’s counsel invoke an application of the doctrine of the “turntable eases/ citing Ferguson v. Columbus & Rome Ry., 75 Ga. 637 (2). In the case of Savannah, Florida & Western Ry. Co. v. Beavers, 113 Ga. 398 (39 S. E. 82, 54 L. R. A. 314), this doctrine was exhaustively discussed, and the Supreme Court adopted “the policy of limiting the doctrine, not strictly to turntable cases alone, but of refusing to extend it to cases which upon their facts do not come ‘strictly and fully within the principle upon which those cases rest. Manos v. Myers-Miller Furniture Co., 32 Ga. App. 644 (124 S. E. 357). In the Manos case this court held that a tier of shelves was not such an “attractive nuisance55 as to come within.the principle of that class of cases.

Where a 'six-year-old child was injured while playing with a velocipede ear, which was left in an open and exposed place near the depot in the town of Manor, where the public were accustomed to travel and be, and where small children of the town were at liberty to go, and where they frequently went, it was held by the Supreme Court that this vehicle was not such an “attractive nuisance as to place it in the category of the “turntable cases Atlantic Coast Line R. Co. v. Corbett, 150 Ga. 747 (105 S. E. 358).

Counsel for the plaintiff take the further position that the relation of landlord and tenant existed between the plaintiff’s father and the defendant, and therefore the plaintiff was not a trespasser. If the pile of ties had been located on the premises which plaintiff’s father rented from the defendant, this contention might possibly have been well taken. But the plaintiff, while possibly a licensee in going upon the path from the house to the well, became a trespasser the moment she left the path and went upon the right of way. In the case of Manos v. Myers-Miller Furniture Co., supra, the shelves were on the defendant’s property, within two or three feet from the line of an alley, and there was no obstruction dividing the alley from the defendant’s premises. In the instance case the ties were “about 100 feet from said well, and by the side of the path leading from said house to said well.” Under these circumstances, the plaintiff had no right or license to go upon the cross-ties on the right of way, and it is not alleged that she had been in the habit, with or without the defendant’s knowledge or consent, of going about them, or that there was any other circumstance, except the common knowledge of child nature, which should have put the defendant on notice that she would at any time do so. The petition fails to disclose the defendant’s violation of any duty, and therefore fails to show negligence.

To use language quoted with approval by the Supreme Court in the Beavers case, supra, “When a child wakes up in the morning in his father’s house, the duty of providing a safe playground for him during the day rests upon his parents;” and, as was said by the court in Branan v. Wimsatt, 298 Fed. 833 (54 App. D. C. 374, 36 A. L. R. 14): “The duty devolves on natural guardians and lawful custodians to protect children from the consequences of their restless spirit of adventure, and that duty can not justly be wholly transferred to strangers who are under no obligation to keep watch and ward over the children of others.”

The injury in this ease was simply an unforeseen accident, and the defendant was not liable. See further, in this connection, Hardy v. Missouri Pacific R. Co., 26 Fed. 860 (36 A. L. R. 1); Tomlinson v. Vicksburg, S. & P. R. Co., 143 La. 641 (79 So. 174); Kramer v. Southern R. Co., 127 N. C. 330 (52 L. R. A. 359, 37 S. E. 468); United Zinc & Chemical Co. v. Britt, 258 U. S. 268 (42 Sup. Ct. Rep. 299, 66 L. ed. 615, 36 A. L. R. 28).

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.