39 Minn. 164 | Minn. | 1888
This action was brought to recover damages for personal injuries sustained by plaintiff’s son while playing on one of defendant’s turn-tables. The table was situated upon defendant’s own premises, in the suburbs of St. Peter, some five or six hundred feet from the depot. The premises were uninelosed, but the table was not so near any highway or street as to interfere with the safety or convenience of public travel. It was what is called a “skeleton” turn-table, of the kind in general use by railways except in roundhouses. In accordance with the general usage, it was not locked, but was supplied with latches of the usual kind to keep it in place when
The rule invoked by plaintiff is that laid down by this court in Keffe v. Milwaukee & St. Paul Ry. Co., 21 Minn. 207, and by the supreme court of the United States in what may be termed the pioneer “turn-table case,” (Railroad Co. v. Stout, 17 Wall. 657,) in which it is held that the owner of dangerous machinery, who leaves it in an open place, though on his own land, where he has reason to believe-that young children will be attracted to play with it, and be injured,, is bound to use reasonable care to protect such children from the danger to which they are thus exposed. The line of argument adopted in the “Keffe Case,” in support of this rule, is that such machinery, being attractive to young children, presents to them a strong temptation to play with it, and thus allures them into a danger whose nature and extent they, being without judgment and discretion, can neither apprehend nor appreciate, and against which they cannot protect themselves; that such children may be said to be induced by the owner’s own conduct to come upon the premises; that what an express invi
It is unnecessary, however, to determine whether, upon the facts in the present case, the finding of negligence on part of the defendant can be sustained, inasmuch as it is clearly established by both the evidence and the special findings of fact that the boy himself was guilty of contributory negligence. The law very properly holds that a child of such tender years as to be incapable of exercising judgment and discretion cannot be charged with contributory negligence; but this principle cannot be applied as a rule of law to all children, without regard to their age or mental capacity. Children may be liable for their torts or punished for their crimes, and they may be guilty of negligence as well as adults. The law very humanely does not require the same degree of care on the part of a child as of a person of mature years, but he is responsible for the exercise of such care and vigilance as may reasonably be expected of one of his age and capacity; and the want of that degree of care is negligence. The fact that he may not have the mature judgment of an adult will not excuse a child from exercising the degree of judgment and discretion which he possesses, or for disregarding the warnings and orders of his seniors, and heedlessly rushing into known danger. In the Stout Case, the defendant made an express disclaimer of any contributory negligence on part of the plaintiff. In the Keffe Case, which was disposed of on the pleadings, this court said: “It was not u.rged upon the argument that plaintiff was guilty of contributory negligence, and we have assumed that he exercised, as he was bound to do, such reasonable care as a child of his age and understanding was capable of using.” And as was remarked in the Keffe Case, in the cases cited in support of these “turn-table” cases, “the principal question discussed is not whether the defendant owed the plaintiff the duty of care, but whether the defendant was absolved from liability for breach of duty by reason of the fact that the plaintiff was a trespasser, who by his own act contributed to the
The evidence in the present case shows without conflict substantially the following facts: The boy was nearly 10J years old, and of at least average intelligence. He had been at school since he was 6 or 7 years old. His father was a railroad man, in the employment of the defendant around the yard and depot, and the boy had been frequently around the railroad grounds and the turn-table with his father. He was evidently familiar, at least in a general way, with the working of the turn-table and the use of the latches. His father had repeatedly warned him against going on the turn-table, and told him of the danger, and that he must not go on it. He evidently had quite a lively sense of the danger of playing on the tablé, and of the manner in which accidents were liable to occur to those swinging on it. The boy himself admits that he knew there was great danger •of getting hurt on it. He knew that playing on it was forbidden by the railroad company, and that if its agents saw children doing so they would drive them off. It is suggested that his motive in going to the table was to try to induce the other boys to get off lest they might get hurt. But if he had such a realizing sense of their danger, so much the more inexcusable was it for him to go and do precisely what he knew was exposing them to danger.