50 W. Va. 457 | W. Va. | 1901
Bogg’s Run Mining and Manufacturing Company was engaged in mining coal from its land, and in its operations used a cable for hauling its coal cars from its mine to the tipple at the railroad and back to the mine. This cable ran over some pulleys necessary for its operation. Raymond Uthermohlen, a boy between seven and eight years of age, was playing with two Other small boys on the premises of the said company, and in some way he was caught by the cable and his leg fastened between the cable and one of those pulleys, and badly injured, and then he brought this action against said company in the circuit court of Ohio County to recover damages for his injuries. The court excluded the plaintiff’s evidence as not sufficient to sustain the action and directed a verdict for the defendant. The plaintiff, Uthermohlen, has brought the case to this Court.
I think the principles of law stated in Ritz v. City of Wheeling, 4-5 W. Va. 262, decide this case for the defendant, and I do not see that I can now add anything of value to what is there said further than to refer to a few cases decided since the decision of that case. It is a fundamental proposition that on
I refer to Judge Fish’s opinion in the cited Georgia case as able and full upon this much debated subject.
I will next refer to the New Jersey case of Delaware, Lackawanna and Western Railroad Co. v. Reich, 61 N. J. Law 635, 41 L. R. A. 831, holding that a land-owner is under no obligations to a mere trespasser to keep his premises in a safe condition, and the fact that the trespasser is an infant of tender years affords no reason for modifying the rule, and charging the land-owner with a duty which does not otherwise exist. I also refer to Turess v. N. Y., Susq. & Co., 61 N. J. Law 314, holding that a railroad company maintaining upon its own land a turntable is not liable for injury to a child who comes upon
An argument used in support of the “Turntable Cases” is that the owner by having such attractive machinery invites the child to come upon his premises. That is carrying his act very far, to say that when the defendant has a cable and pulleys made upon his land solely for the mining of coal, he thereby invites children. If this is so, owners of land, if they utilize their land, will extend a very wide invitation and risk tremendous danger of liability, and in many, many cases must fail to come up to the required standard, however sincere in their efforts to avert harm to children. They would incur vast additional expenditures in enclosing and guarding their machinery, an expenditure wholly unnecessary except to prepare in advance
But whether the principle of the “Turntable cases” is right or not, a number of courts have said, while following them, that those cases must be limited to the instances before the court;'and that the Stout Case must not be extended, but limited to its facts. Those cases will not justify a recovery in this case. There the turntable was idle and unfastened, a circumstance which induced the Supreme Court to find the presence of negligence against the company; whereas in the case before
For the reason that no duty.was imposed by the law on the
The plaintiff excepted to the action of the circuit court in excluding as witnesses because of incompetency by reason of infancy the plaintiff, aged nine years at the time of trial, Elmer Crosby, aged ten years, and George Mentz, aged nearly fourteen. The examination of these witnesses on their voir dire renders it very doubtful whether they were competent. Some of their answers evince competency. The oldest one said he did not hear what the clerk said in swearing him. lie said the clerk asked him what the oath was; otherwise he seemed to have some understanding of an oath. But none of them seemed to have an adequate conception of what an oath meant, its sanctity, solemnity or moral or religious obligation. Under Judge DeNt's opinion in State v. Michael, 37 W. Va. 565, they seem to be incompetent, as he said that children might have some knowledge that it is wrong to tell a lie, yet this may be so slight as to produce no decided or lasting impression on their minds, and they may lie easily led to regard as truth what others tell them. I do not think these witnesses exhibited enough intelligence to make them amenable for perjury. But there is another strong consideration which forbids this Court from reversing the judgment on this ground. We cannot judge of the real character or degree of intelligence of these witnesses from their mere paper evidence. The judge of the circuit court had a means of decision in this matter not possessed by us, their presence face to face before him, affording him a superior means to judge, of which we are deprived. In almost every case that is the decid
Affirmed.