43 Minn. 289 | Minn. | 1890
Lead Opinion
This is an action by an administratrix to recover for an injury causing the death of'the intestate, through the negligence of the defendant. Upon the trial there was no substantial conflict in the evidence as to the material facts in the ease. The uncontradicted evidence may be said to establish the following facts: The railroad of defendant runs through the village of Morris, in this state. Upon one of the blocks of that village are located several of defendant’s tracks, running through the block, its cattle-yard, elevator, coal-sheds, a shop for repairs, a turn-table, and, shortly before the accident, a round-house, but which had been burned down. The turn-table was near the centre of the block, being 422 feet from the street bounding the block on the north, 578 feet from the street bounding it on the south, 225 feet from that bounding it on the east, and 125 feet from that bounding it on the west. On the north side two tracks, running north and south, ran to the turn-table; on the south side, one track running in nearly the same direction, and, connecting with the main track, ran to the turn-table. On one of the tracks running to the turn-table stood several sets of car-wheels,with the axles. It seems to have been customary with defendant, for a considerable time before the accident, to leave car-wheels standing at that place. The track on which they stood had a descending grade towards the turn-table. The grounds were not inclosed, so that they appear to have been easily accessible to boys, and boys of all ages seem to have been accustomed to seek them for the purpose of amusing themselves with the turn-table and the wheels, by revolving the one and setting the other in motion along the track. The defendant knew this, and had instructed its employes at work upon and about the grounds to drive the boys away whenever they came, and they had generally, though not always, done so, whenever they saw the boys there. The turn-table, when not in use, was fastened with an iron latch let down into a socket. One of the witnesses testified that any child, a boy of five or six years old, could raise .out the latch. The wheels were fastened to prevent them rolling with a chip or block, sometimes with a tie or piece of timber. At the time of the accident in question three boys, two about nine jyears old each, and the deceased about six years old, went upon
The case is, in its main features, nearly analogous to Keffe v. Milwaukee & St. Paul Ry. Co., 21 Minn. 207. The principal difference in the facts of the two cases is that in that case the turn-table was left unfastened, while in this, as the jury might from the evidence have found, though the turn-table was usually kept fastened, and perhaps was fastened on this occasion, and though the wheels were undoubtedly fastened, the fastenings were insufficient to prevent children who come within the protection of the rule in that case from easily removing them. The difference is not such as necessarily to take the ease out of the rule; for if one who has on his own premises a dangerous machine, which he knows to be accessible to and resorted to by children of too tender years to know the danger, and of too immature judgment or discretion to control the natural instinct of a child to amuse itself with anything that may attract it as a plaything, is under a duty to exercise care to prevent injury to such a child, the fact that he uses some care is not of itself sufficient to absolve him from liability. The care he must exercise is that which an ordinarily prudent person would, under similar circumstances, use to prevent injury to such children. Whether in any particular case such degree of care has been used is, generally, a question for the jury. Whether any care is required of the owner of a machine, and, if so, what an ordinarily prudent person would do in the way of care, must depend upon the circumstances of the case. To impose the duty of care, the machine must be such that it is dangerous for very young children to play with or about it, it must be of such a character that such children would naturally be attracted to play with or about it, and it t
As we held in the Kolsti Case, (Kolsti v. Minn. & St. Louis Ry. Co., 32 Minn. 133, 19 N. W. Rep. 655,) it was competent, on the issue as to proper care, for the defendant to prove that it fastened the turn-table and the wheels in the way customary among railroad companies. But, although that evidence was proper for the jury to consider on that issue, it was not of itself conclusive. Doyle v. St. Paul, M. & M. Ry. Co., 42 Minn. 79, (43 N. W. Rep. 787.) For the common sense of the jury might inform them that the means ordinarily used for such purposes are not adequate to guard against the dangers
The child was injured at the turn-table. The evidence indicates that the turn-table was partly turned. It is not clear that the injury was not in part caused by that condition. It was proper, therefore, for the court to admit evidence as to the manner of fastening it, and also to refuse to instruct the jury that its position and condition were immaterial.
The answer denied the alleged negligence of the defendant, and alleged that the death was caused “solely by the wrongful act, negligence, and carelessness of the deceased and others, who were wrongdoers and trespassers upon the premises of defendant, and who wrongfully, and without the knowledge of defendant, but contrary to its orders, were upon said turn-table and its premises, and set said axle and wheels in motion.” This clearly refers only to deceased and the two boys who were with him. On the trial defendant offered to prove negligence on the part of the child’s mother in permitting her child to go upon the defendant’s grounds, and about the turn-table and tracks. This was excluded. Two requests of defendant to instruct} the jury, based on the proposition that the mother was negligent,i were refused. That, in case of injury to a child non sui juris, the contributory negligence of the parent is imputed to the child, was de
The evidence made the case a proper one for the jury, and, though the damages were large, they are not so excessive as to show that any improper motives influenced the jury.
Order affirmed.
Dissenting Opinion
(dissenting.) I think that the condition of the turntable did'not constitute a ground upon which liability on the part of the defendant could have been found. The only circumstances to be considered in this connection were that the turn-table was left in such a position that the revolving track did not, perhaps, connect with either of the two stationary tracks, and that the table may have been unfastened. The fact that it was not fastened bears no proximate relation to the accident or injury, if it was not set in motion by the boys, but remained motionless and stationary. If it had been fast
