85 Iowa 634 | Iowa | 1892
In March, 1889, the defendant maintained a turntable on its grounds at the town of Kellogg. The turntable was about forty-five feet in length, weighed from ten to fifteen tons, and rested on a central pivot. Under each end was a wheel so placed that it revolved on a circular track below, if brought in contact with it when the table was in motion. The upper surface of the rails on the table was about four feet above the circular track when the table was level. Each wheel was about one and one-half inches above that track, but a moderate weight on either end would depress it until the wheel rested on the track. The table when not fastened was easily made to revolve. When in position for use, each end was opposite an embankment on which was a track over which the locomotive engines were moved to and from the table.
The town of Kellogg contained nearly one thousand inhabitants, and was chiefly northeast of the depot, and the table was four or five hundred feet southwest of it. Southwest of the table was a stream of water and a dam. A few houses of the town were south of the main line of the defendant, but none of them were in the immediate vicinity of the table. A public highway was near it. The stream afforded fishing in summer, and skating in winter, and there was a grove, and had been ball grounds, in the locality. It was the custom for boys and others, in going from the town to the stream, grove, and ball grounds, and in returning, to pass within a distance of from thirty to one hundred feet of the table; and it was a common practice for boys to play on and about the table, although it does not appear that the defendant ever encouraged or approved the practice. In the month named, four boys, of whom the oldest was about eleven years of age, went to the table, pulled out the pin, and commenced to turn the table. They were soon joined by the plaintiff and others, until the number of boys present was twelve or more, and some time was spent in playing with the table, some of the boys pushing, thus causing it to turn, while others rode upon it. The plaintiff pushed for a time, and while the table was in rapid motion climbed upon it, and laid down with his
The only ground of the motion for a verdict which we find it necessary to consider is stated as follows: “The evidence shows without conflict that the plaintiff was guilty of negligence contributing to the injury complained of.” At the time of the accident plaintiff was thirteen years, one month and ten days old, and appears to have had the intelligence and understanding usually possessed by boys of that age. One of the smaller boys had his heel caught in the table, and was sent away. Another boy, about seven years of age,was also ■ made to leave to avoid accident. A few minutes before the plaintiff was hurt the boys were told to leave by a man named Wilson, and warned that they were in danger of being hurt. The plaintiff denies knowledge of these incidents, and it must be presumed that he was ignorant of them. He says he had never been told not to play on the table, and did not know that it was dangerous to do so. But he admits that he knew that when the ends of the table were opposite the embankment the space between the table, when level, and the embankment was but one and one-half inches; that he knew if his leg were caught between them it would be crushed; that he knew that it was dangerous to allow his legs to project beyond the end of the table; and that, if he had thought of the danger, he could and would have avoided it. The only reason he gives for not doing so is that he was having fun, and did not Chink of it. It thus appears that he knew the danger, and comprehended the result of permitting his leg to be caught as it was, and that slight care on his part, which he was fully capable of exercising, would have
The motion to instruct the jury was rightly sustained on the ground we have considered. The judgment of the district court is, therefore, affirmed.