145 P. 8 | Mont. | 1914
delivered the opinion of the court.
The plaintiff elected to stand upon his complaint after a general demurrer thereto had been sustained. Judgment for the defendants was entered, and this appeal is the result
The material allegations of the complaint, píeaded as one Cause of action, may be epitomized as follows: That the plaintiff is the father of Emma Nixon, who was run over and killed by one of defendants’ trains on December 5, 1912; that at and for some years prior to that time the defendant company was engaged in operating a railway through Bear Creek, an unincorporated village in Carbon county; that it was the duty of said company to maintain on both sides of its track a good and legal fence and to keep at its crossings cattle-guards over which cattle and other domestic animals could not pass, but in this duty it wholly and negligently failed; that at the time of the accident Emma Nixon-was eight years old and resided about one and one-half miles west of Bear Creek, south of the company’s track; that she, together with a great number of other children residing in the same neighborhood, attended school at Bear Creek, north of the track; that because of defendants’ failure to maintain a good and legal fence it became and was the custom of such children to walk upon said track, particularly between 3 and 5 P. M. of each day, except Saturdays and Sundays, and said track, for many years prior to the date of the accident, had been used as a common highway for pedestrians en route to and from Bear Creek, all of which was well known to the company; that it was also a common custom for such children, when returning from school by way of said track, to attempt to ride upon the rear end of the trains traveling thereon, especially if such trains were moving slowly, and this the defendants well knew; that at the time of the accident one of the company’s trains was moving slowly between Bear Creek and the residence of Emma Nixon,
The question presented is whether a cause of action is stated in the foregoing facts, bearing in mind that the complaint stands confronted only by a general demurrer, and that the duty of this court is to search it from end to end and determine whether its sufficiency can be reasonably asserted upon any theory. The appellant insists that a cause of action is stated under (1) the statutory duty imposed upon railway companies to fence, and (2) under the common-law duties arising upon implied invitation.
1. The application to this case of the statutory duty imposed upon railway companies to fence is erroneously assumed in
2. The argument upon implied invitation is, like the complaint, of rather mixed complexion. At one time the invitation is implied from custom, at another from attraction under the so-called “turntable doctrine,” and often it is directed to the presence of the child near the track, instead of to her attempt to board the train. The extent to which the turntable doctrine has been accepted in this state, and how it may be invoked, are disclosed in Driscoll v. Clark, 32 Mont. 172, 80 Pac. 1, 373, and
Analyzing the complaint, we observe that the attraction was a train, the only unusual feature of which was that two cars
It is not necessary to canvass the averments touching the im-
Assuming, but not deciding, that an invitation to children to
The ruling complained of was correct, and the judgment appealed from is affirmed.
Affirmed.