New York, N. H. & H. R. v. Fruchter

271 F. 419 | 2d Cir. | 1921

HOUGH, Circuit Judge

(after stating the facts as above). It is too obvious to need comment that the court below treated the claim in suit as covered by what are known as the “attractive nuisance,” “lure,” or “trap” cases.

[1] Since, so far as the courts of the United States are concerned, these cases are all assumed to rest on Railroad Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745, the word “nuisance” is inappropriate. A nuisance is that which “unlawfully worketh hurt, inconvenience, or damage,” and neither the turntable of the Stout Case nor the electric wire here to be considered was a nuisance; both were lawful enough. But many a lawful thing may he so negligently managed, handled, or maintained as to give rise to causes of action in tort. The true doctrine is that any composition of matter which lures or attracts the confiding ignorance of childhood to its own harm must be safeguarded as circumstances require, and of course the circumstances vary in almost every instance.

[2] We are first seriously requested to abandon the doctrine of the Stout Case, because it is said to have been rejected by the courts of the state of New York. The request is a large one, considering how fully, after elaborate investigation, the ruling was restated in Union Pacific, etc., Co. v. McDonald, 152 U. S. 262, 279, 14 Sup. Ct. 619, 38 L. Ed. 434, and our own acknowledgment of its binding effect recently made in Heller v. New York, etc., Co., 265 Fed. 192.

But if we wished to depart from the doctrine in question we could not, for the matter is one of general law, and we are bound (in the absence of any statutory change by competent authority) by the decisions of the Supreme Court as reviewed at some length in Baltimore & Ohio R. R. Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, 37 L. Ed. 772, and very recently restated by Justice Pitney, dissenting, in Southern Pacific v. Jensen, 244 U. S. 249, 37 Sup. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Aun. Cas. 1917E, 900, the dissent not dealing with this proposition.

[3 ] It is further asserted that the “lure” cases have no application because “there is nothing alluring about a wire maintained at such a height.” The essence of allurement is temptation, and the difference between invitation and temptation is acutely intimated in Erie R. Co. v. Hilt, 247 U. S. 101, 38 Sup. Ct. 435, 62 L. Ed. 1003. Where, for physical convenience or business advantage, men incline to take a pathway across a railway track or the like in order to reach a business place of the owner of the dangerous region traversed, an invitation may be inferred which takes away the sting of trespass. This is no stich case.

The question here was whether the bridge, with its apparatus of wires on top, was or was not a temptation to children; that was a question of fact as to which there was evidence from which the jury-might find that it had proved such a temptation for a long time.

[4] That it was dangerous was too obvious for argument, and therefore if the danger was known, and the temptation to children also known, and known to the defendant, it was a question for the jury to declare whether the absence of guards either human or mechanical did not constitute negligence. This is the substance of our ruling in the Heller Case, supra, where, as may be noted, the verdict of the jury had negatived negligence.

Whether a jury issue is presented in any given case depends upon a multitude of circumstances; we said in the Heller Case that the plaintiff’s “extraordinary act was not one that defendant could be expected to have foreseen and which it could have anticipated.” 265 Fed. 199. Considering the evidence in this case we conclude that there was evidence from which the defendant could have foreseen that some boy would in a spirit of bravado do exactly what this boy did, and under the Stout Case just such troublesome boys are entitled to be protected against themselves.

[5] It is noted that the defendant’s structure was lawfully placed on top of the city bridge, and that probably the prime temptation for a boy was clambering up the bridge,'which did not belong to defendant. But it was perfectly possible to physically protect the wire which did belong to defendant, while leaving the protection of the bridge to its own proprietor. This difference in ownership does not make any difference in the law. Electric, etc., Co. v. Healy, 65 Kan. 798, 70 Pac. 884.

Plaintiff in error complains of certain remarks of the trial court as unduly prejudicing the presentation of its case to the jury. The language complained of is of two kinds—(1) unfavorable comments upon the prolixity of counsel; and (2) statements exhibiting repugnance to the attempts of employees of defendant below to procure a statement regarding the particulars of the accident from the infant plaintiff while he was still in the hospital. Consideration of the record herein leads to the holding that as to the first branch of the court’s remarks the judge was entirely within the rights of any trial court, and that the comments were more than justified.

[6] The second series of remarks was calculated to induce belief that defendant’s agents were unfairly attempting to secure damaging admissions from so small a boy. They constitute error; but, having regard to the very careful direction of the colloquial charge that the jury should disregard all comments of his own, and to the extreme moderation of the verdicts'awarded by the jury, we are unable to perceive that the error was harmful, for the only injurious effect that could have resulted was possibly to aggravate damages through sympathy. Nothing that was said tended to bolster up the plaintiff’s cause of action; but the verdicts show that there was no aggravation. Consequently the error was harmless. Austro-American, etc., Co. v. Thomas, 248 Fed. 234, 160 C. C. A. 309, L. R. A. 1918D, 873.

The judgments are affirmed, with costs.