(after stating the facts). First: Appellee, as administrator of the estate of his minor son, deceased, and for the sole benefit of the estate, instituted this action against appellant. He seeks to recover damages for the conscious suffering of his intestate caused by personal injuries which resulted in the latter’s death, and which appellee alleges were produced by the negligence of appellant. Conceding the contributory negligence of appellee, can such negligence be pleaded in defense to the action where appellee is the sole beneficiary and distributee of the estate? This is the question presented by the demurrer. In Wolf v. Railway Company,
“ In those States like Virginia, Louisiana, Iowa, and perhaps others, in which the damages arising from the wrongful death survive and become a part of the estate of the deceased, and are inherited from the estate by the named beneficiaries as heirs, the contributory negligence of such heirs does not constitute a defense to an action brought by an administrator for the recovery of such damages, because the damages are part of the estate, and the estate is cast upon the heirs by operation of law. An estate will vest in the heir and be cast upon him by operation of law, even though the heir wrongfully caused the death of the ancestor for the purpose of obtaining the estate.”
Conceding that Mack Busbee was injured through the wrongful act of appellant, whatever suffering he endured, as a result, between the time of his injury and death, was to him a cause of action for damages, which, at his death, survived and could be recovered by his personal representatives for the benefit of the estate of Mack Busbee. Section 6285, Kirby’s Dig.; Davis v. Railway,
Contributory negligence of the father cannot be imputed to his infant son, so as to defeat the right of the latter to recover during his life (Railway Company v. Rexroad,
In other jurisdictions, in similar actions founded upon similar statutes, the rule is as above announced.. Westerfield v. Lewis,
“While the negligence of the parent will not be imputed to the child, and the administrator of its estate, if dead, may recover damages for pain and suffering caused by negligence of defendant, notwithstanding the parent himself was guilty of negligence contributory to the injury, yet the rule is different when the parent sues, not for the estate but for his own benefit.”
An examination of the cases from other jurisdictions will discover that contributory negligence of the parent has been allowed as a defense, generally, only in actions founded upon statutes similar to sections 6289-90 of Kirby’s Dig. (Lord Campbell’s Act.) These statutes create a right of action growing out of the death of the party injured by the wrongful act of another. The right does not exist till the death occurs. It accrues then, and is for the damages sustained by the next of kin — the pecuniary loss to them — as a result of the death of the person injured. In cases based upon such statutes the administrator “acts as trastee for those upon whom the statutes confer the right of recovery.” He does not in such cases represent and sue for the estate of the deceased, but solely for the pecuniary benefit of those having the right of action under the statute. Sections 6289-90, supra; Davis v. Railway, supra. Hence, the doctrine that one shall not be allowed to profit by his own negligence should be, and has been, applied in such cases. O’Shea v. Lehigh Valley Railroad Company, 79 N. Y. App. Div. 254; Air Line Ry. Co. v. Gravitt,
“Necessarily, the peculiar provisions of the statute must exercise an important, if not controlling, influence in the decisions of each State.”
The court in Bamberger v. St. Ry. Co., supra, further says: “The right is not strictly a descendible or inheritable right, but one arising out of the special statute, and, as to its scope, is governed by the statute.”
The case of O’Shea v. Ry. Co., supra, also recognizes the difference between the statutes under which the suit was brought in that case and statutes like those under consideration. The Court of Appeals (N. Y.) quotes the same language from Wolf v. Ry. Co., as quoted by us in the beginning of this opinion. In Air Line Ry. Co. v. Gravitt, supra, it is said:
“The sounder view is that entertained by the courts of Iowa and Virginia.”
Our conclusion is that where the right - of the parent is derived from the child by inheritance under the statutes (sections 2686,6285, Kirby’s Dig.) contributory negligence is not a defense. To so hold is not, as some text writers and judges loosely express it, magnifying form above substance, but rather is it carrying out the law as it is written. If the result is to confer an undeserved benefit upon one whose negligence has been partly instrumental in producing the estate sought to be recovered, that is a matter for the Legislature to deal with, but not for the courts. See Wymore v. Mahaska County,
The court, therefore, did not err in sustaining the demurrer to the paragraphs of the answer setting up, as a defense, the contributory negligence of the appellee, nor in excluding evidence tending to show contributory negligence on the part of appellee.
Second: In Lynch v. Nurdin, Eng. Com. L. Rep. 1 Ad. & Ellis (N. S.), 422, the plaintiff, a child seven years old, in play, got upon a cart that the defendant had negligently left unattended in the street, another child led the horse on, and the plaintiff was thereby injured. In holding that the plaintiff, though a trespasser, could recover, Lord Denman, speaking for the Court of Queen’s Bench, among other things, said’:
“But the question remains, can the plaintiff here, consistently with the authorities, maintain his action, having been at least equally in fault? The answer is that, supposing that fact •ascertained by the jury, but to this extent, that he merely indulged the natural instinct of a child in amusing himself with the empty cart and deserted horse, then we think that the defendant cannot be permitted to avail himself of that fact. The most blamable carelessness of his servant having tempted the child, he ought not to reproach the child for yielding to that temptation. He has been the real and only cause of the mischief. He has been deficient in ordinary care; the child, acting without prudence or thought, has, however, shown these qualities in as great a degree as he could be'expected to possess them. His misconduct bears no proportion to that of the defendant which produced it. For these reasons we think that nothing appears in the case which can prevent the action from being maintained. It was properly left to the jury, with whose opinion we fully concur.”
The above case was cited in 1873 by the Supreme Court of the United States in Railroad Company v. Stout,
Mr. Beach, in his work on Contributory Negligence (§ 141), says that the Supreme Court of Massachusetts “is the only court in this country that has not affirmed Lynch v. Nurdin.” The Supreme Court of Iowa, in Edgington v. Burlington, C. R. & N. Ry. Co.,
“None of the many precedents we have above cited are turntable cases, and in nearly every instance the injured person was a technical trespasser. They unite, however, in giving vigorous expression to the rule that whether the attractive character of the danger and its unguarded condition are to be construed as an implied invitation to the child to enter upon the property of another, or whether such use of one’s own property is a violation of the fundamental doctrine requiring the owner to have a care that his neighbor suffers no harm at his hands, no man, even upon his own premises, may rightfully expose to the approach of young children a temptation which is likely to attract then! into danger, without using care to avoid their injury. It by no means follows that a property owner is an insurer of the safety of the children who come upon his premises. His obligation is simply that which attaches to every member of society when he undertakes to exercise a personal right in a manner which may affect the welfare or safety of another member — the obligation of reasonable care. Discharging that obligation, he has done his duty, and assumes no liability, whatever happens;’but, failing therein, he is justly responsible for the effects of his negligence.”
The rule announced in Lynch v. Nurdin, or what is called the "turntable doctrine,” or the doctrine of the “turntable cases,” is sound in principle, and is supported by the great weight of authority in this country. In addition to authorities cited in Edgington v. Burlington, C. R. & N. Ry. Co., supra, see Keffe v. Milwaukee, etc., R. Co.,
The doctrine was recognized and -approved by this court in Brinkley Car Co. v. Cooper,
"The owner of land is not required to provide against remote, and improbable injuries to children trespassing thereon, but h'e is liable for injuries to children trespassing upon his private grounds when it is known to him that they are accustomed to go upon it, and that from the particular nature and exposed and open condition of something thereon, which is attractive to children, he ought reasonably to anticipate such injury to children as that which actually occurs.” See same case in70 Ark. 335 . (Brinkley Car Co. v. Cooper.) Again in quite a recent case, St. Louis & San Francisco R. Co. v. Williams,98 Ark. 72 , the Chief Justice, speaking for the court, after stating the general rule as to trespassers, says: "What is known as the doctrine of the ‘turntable cases’ forms an exception to the rule.” And then he succinctly states the rule of the “turntable cases” as follows: “Where an owner permits to remain unguarded on his premises something dangerous which is attractive to children and from which an injury may reasonably be anticipated,” he may be liable; quoting from Brinkley Car Co. v. Cooper, as set out above. Under the doctrine of Lynch v. Nurdin, or the doctrine of the “turntable cases,” it was for the jury to determine whether the machinery was dangerous and known to be such because it was attractive to and known to be frequented by children, and whether the appellant was guilty of negligence in leaving the machinery uncovered and unprotected. “Whether or not premises are sufficiently attractive to entice children into danger, and to suggest to the defendant the probability of accident, is a matter to be determined by the jury.” 29 Cyc. 686; Brinkley Car Co. v. Cooper, supra.
It is also usually a question for the jury as to whether or not the injured child has sufficient mental capacity to know and appreciate the dangerous character of the machinery. In other words, it is generally a question for the jury to determine, considering the mental capacity of the child, as to whether or not it is guilty of contributory negligence in coming in contact with the dangerous agency by which it is injured. Westbrook v. Mobile, etc., R. Co., 14 Am. St. and note, 587. See St. Louis, I. M. & S. Ry. Co. v. Sparks,
Even though a child of tender years may be warned of the danger, it is still a question for the jury as to whether the child, considering its age and intelligence, had sufficient mental capacity to appreciate the danger after such warning.
Without discussing the instructions seriatim, we are of the opinion that the court correctly announced the law applicable to the facts assembled in this record. Taking the instructions as a whole, they presented the. questions of neglR gence and contributory negligence to the jury in accord with the principles herein announced. The jury could have found from the evidence that the appellant left the sprocket wheel and chain that killed young Busbee in an open space, unguarded and exposed in such a manner that children who were in the habit of congregating there for play or to get kindling wood might easily come in contact with them; that there was no one at work on the outside of the box factory where the sprocket wheel was situated; that children in crowds, from three or four to a dozen, were in the habit of assembling there for such purpose; that shavings sevéral times were piled around the sprocket wheel so that it could not be seen; that the chain running over the sprocket wheel would gather strings and carry them around with it; that Mack Busbee was run out of the lumber shed and box factory, and warned to keep off of the conveyor chain, and off the premises and away from the machinery because it was dangerous, but that he did not heed the warning and stay away, that he was not warned specifically of the danger of coming in contact with the sprocket wheel; that the chain and sprocket wheel on the outside of the building could have been made safe by being inclosed, or boarded in, at an expenditure of from $2.50 to $20.00; that this could have been done without interfering with the practical operation of the machinery; that Mack Busbee at the time of his injury was between seven and eight years of age; that appellant was fully cognizant of all these facts.
Therefore, we are of the opinion that the facts presented a case for the application of the doctrine of Lynch v. Nurdin and that there was evidence to sustain the verdict and judgment and the court did not err in refusing to instruct a verdict for appellant. It Was a question for the jury.
Third: It is contended that the court erred in not permitting appellant to prove by certain witnesses, employees of appellant, that they notified appellee “to keep decedent away from the' machinery; that’he was in danger.” Conceding that the appellant properly reserved its exceptions to the ruling of the court in excluding this testimony and that the testimony was competent, its only effect, and the only purpose of appellant in offering it, was to show that appellee was guilty of contributory negligence, and that young Busbee was upon appellant’s premises without its consent and contrary to the instructions it had given his father to keep him away, in other words, that he was a trespasser. That was the theory upon which appellant tried its case below. But, as we have seen, the doctrine of Lynch v. Nurdin applies for the protection of children who are trespassing as well as those who are not. There was abundant evidence to prove that Mack Busbee was a trespasser. That fact is conceded. The ruling of the court in excluding the above testimony was not prejudicial. See Cook v. Houston Direct Nav. Co.,
Fourth: The appellant offered to prove by witness Wiley that he had run decedent off the chain several times before he was killed. Conceding that the offered testimony was competent, the court did not err in excluding it. The testimony was but cumulative of the testimony of several other witnesses that showed that young Busbee had been frequently driven off of the chain. There could be no prejudicial error committed in not permitting, or in excluding, testimony that tended only to establish a fact that had been proved conclusively by other testimony. As stated above, there was no doubt that young Busbee was a trespasser, and no doubt that he had repeatedly been warned of the danger of the machinery. This was abundantly established by undisputed testimony that was admitted. Nevertheless, the question of his contributory negligence under the circumstances was for the jury, and was properly submitted.
Affirmed.