113 Ga. 398 | Ga. | 1901
A. A. Beavers obtained a verdict and judgment against the Savannah, Florida and Western Railway Company for the death of his minor child, and upon the defendant’s motion for a new trial
“Assuming, then, that the law is not only settled, but is also consistent, in holding that the owner of land is not liable for the condition of his premises to an adult who enters without permission, the next inquiry is: What difference is there between the case of the adult intruder and the child intruder? Are there considerations which do not exist in the case of the adult, and which, when put into the scale, ought to turn the balance in favor of the child ? The two prominent arguments are: (1) that the child is innocent; (2) that the child is incapable of protecting itself. What force is to be allowed to these considerations; and do they, when estimated at their true value, outweigh the reasons against imposing liability upon the landowner? . . O.f course the innocence of a plaintiff does not per se establish the fault of a defendant. The landowner can not be liable unless he owed to the child a duty which he has neglected. Should the law, in view of the innocence of the child, impose on the landowner the duty here in controversy ? No doubt there are cases where a defendant is rightly held liable to a child plaintiff when he would not be liable to an adult plaintiff under similar circumstances. Where it is admitted that a duty exists to use care to avoid harm to both children and adults (e. g., in the the use of the public highway), then, in point of fact, more care may be required towards a child than towards an adult. In view of the child’s helplessness and unconsciousness of danger, more care may, as matter of fact, be required under the unvarying legal rule of ‘ due care under the circumstances; ’ just as more care, in fact though not in law, may be required to avoid colliding with an obviously lame or blind adult than with a vigorous man in full pos
“ Why should innocent children have greater rights than innocent adults, in respect to damage resulting from the nature of the premises upon which they enter without permission? Remedy against the landowner for harm happening from the condition of the premises is denied to adults who are entirely free from intent to violate rights, and whose presence upon the land is due to pardonable mistake or to irresistible external force. The test is not whether their motives were innocent or even laudable, or whether their conduct was careful, but whether they entered without the owner’s permission. If so, they can not claim that the owner was under, a duty to make things safe for their access, or to give warn
An early case, and one often referred to, is that of Hargreaves v. Deacon, 25 Mich. 1. There thé plaintiff, as administrator, sought to recover damages for the death óf his son, a child of tender years, who was killed by falling into a cistern which had been left un
In Klix v. Nieman, 68 Wis. 271, the declaration alleged that the defendant was the owner and in possession of a vacant and uninclosed lot in a thickly settled part of the city of Milwaukee, to which the public had free and unobstructed access; -that for a long time there had existed upon the lot a deep and dangerous hole or excavation, partially filled with water, making a pond which covered about the entire surface of the lot; that the water of the pond was roily, so that its depth could not be ascertained except by.meas•urement, but that in places it was nine feet deep, so that the pond was dangerous to the lives of children who might be attracted thereto, for amusement or otherwise; that the defendant, well knowing that the pond was dangerous to the lives of children residing in the vicinity of the same, wrongfully, negligently, and carelessly permitted it to remain unguarded by a fence or barricade, and that
The facts in the case of Gillespie v. McGowan, 100 Pa. St. 144, are quite similar to those in the case under consideration. There the defendants “ were the owners of a lot of ground in the outskirts of Philadelphia, upon which there was and had for some time been a deep well. The nearest paved highway ran three hundred feet from the well, and the nearest road about eighty feet. There were houses about three hundred feet off, but the built-up part of the city was nearly half a mile distant. Whether any paths led near the well was disputed. The well was uncovered and was not hidden by bushes or shrubbery. It was not fenced around, nor was the lot in which it lay. The lot was a common place of resort for children and adults. A boy of a little less than eight years of age was found drowned in the above well, his hat being found on the side, together with a few small fishes. In a suit by the boy’s father against [the defendants] to recover damages for his death: — Held, that the boy was a trespasser, and that [the defendants] had not been guilty of any such negligence as would render them liable for his death.” In delivering the opinion of the court, Mr. Justice Paxson said: “Nor do we assent to the broad proposition that.
In Clark v. Manchester, 62 N. H. 577, the City of Manchester
In Richards v. Connell, 45 Neb. 467, the allegations of the petition were, in substance, that the defendants had for a long time negligently permitted the surface-water to accumulate on certain lots which they owned and were in possession of, thereby creating a deep and dangerous pond, and that they had failed and neglected to fence such lots or to’erect barriers of any kind to prevent children, lawfully in the vicinity thereof, from falling into said pond; that thelots were situated in the vicinity of one of the public schools of the city of Omaha, and that the pond was not only dangerous to persons passing along a named street adjacent thereto, but was in a public and much frequented place and attractive to children of tender age, many of whom were accustomed to play about and upon said water; that on a given day the plaintiff’s intestate, a boy ten years of age, yielding to the natural impulse of childhood, went on said pond, upon a section of a wooden sidewalk out of which he had constructed a raft, and while floating thereon fell into the pond and was drowned. A demurrer to the petition was sustained, upon the ground that it failed to state a cause of action against the owers of the land, the court holding: “ The owner of a vacant lot upon which is situated a pond of water or dangerous excavation is not required to fence it, or otherwise insure the safety of strangers, old or young, who may resort to said premises, not by invitation express or implied, but for the purpose of amusement or from motives of curiosity.” To the same effect see City of Omaha v. Bowman (Neb.), 72 N. W. Rep. 316, where a boy, seven years old, was drowned by falling off a raft floating on a pond, which had been made by the city in constructing and filling up a certain street. So in Peters v. Bowman, 115 Cal. 345, it was held: “ The owner of a vacant lot upon which a pond of water has accumulated by reason of an embankment erected by the city in the grading of the street, prevent
Among the cases relied on by the defendant in error is that of Ferguson v. Columbus & Rome Railway, 75 Ga. 637, 77 Ga. 102, wherein this court held: “ Where a railroad company leaves a dangerous machine, such as a turntable, unfastened in a city, on a lot which is not securely inclosed, and where people and children are wont to visit it and pass through it, this is negligence on the
As supporting the rule that the owner or occupier of land owes no duty of immunities to trespassing children, see the following cases, and authorities therein cited: Central R. Co. v. Henigh, 23 Kan. 347; Green v. Linton, 27 N. Y. Supp. 391; Powers v. Creem, 48 N Y. Supp. 21; Newdoll v. Young, 80 Hun, 364; McAlpin v. Powell, 70 N. Y. 126; Sterger v. VanSicklen, 132 N. Y. 499 ; Murphey v. Brooklyn (N Y.), 23 N E. Rep. 887; Severy v. Nickerson, 120 Mass. 306; McEachern v. Boston R. Co., 150 Mass. 515; McGuieness v. Butler, 159 Mass. 233 ; Gay v. Railway Co., Ib. 238; Holbrook v. Aldrich, 168 Mass. 15; Galligan v. Mfg. Co. (Mass.), 10 N. E. Rep. 171; Breckenridge v. Bennett, Penn. Com. Pl. 7 Kulp, 95 ; Rodgers v. Lees, 140 Pa. St. 475; Bridge Co. v. Jackson, 114 Pa. St. 321; Talty v. Atlantic, 91 Iowa, 135; Ritz v. Wheeling (W. Va.), 31 S. E. Rep. 993; Fredericks v. Ill. Cent. R. Co., 46 La. Ann. 1180; O’Connor v. Ill. Cent. R. Co., 44 La. Ann. 339; Gulf, Colo. & S. F. R. Co. v. Cunningham, 7 Tex. Civ. App. 65; Oil Co. v. Morton, 70 Tex. 400; Missouri R. Co. v. Edwards (Tex.), 36 S. W. Rep. 430; Slayton v. Railroad Co., 40 Neb. 840; Vanderbeck v. Hendry, 34 N. J. L. 467; Phillips v. Library Co. (N. J.), 27 Atl. Rep. 478; Fitzpatrick v. Cumberland Mfg. Co. (N. J.), 39 Atl. Rep. 675; Benson v. Traction Co., 77 Md. 536; Kayser v. Lindell (Minn.), 75 N. W. Rep. 1038 ; Dehanitz v. St. Paul (Minn.), 76 N. W. Rep. 48; Buch v. Amory Mfg. Co. (N. H.), 44 Atl. Rep. 809; Robinson v. Railway Co., 7 Utah, 493, 27 Pac. Rep. 689; Charlebois v. Railroad Co., 91 Mich. 59; Moran v. Car Co. (Mo.), 36 S. W. Rep. 659; Clark v. Richmond, 83 Va. 355; City of Indianapolis v. Emmelman, 108 Ind. 530.
Judgment reversed.