28 N.Y.S. 1097 | N.Y. Sup. Ct. | 1894
The plaintiff, James Walsh, aged about five years, went upon the premises of the defendant, in company with other children, and, while playing upon a railroad turntable of the defendant, was injured. The turntable was located on the line of the defendant’s railroad. This turntable was located in an open space in the city of Troy, and pedestrians were in the habit, without any special consent or objection of the defendant, of passing over this space near the turntable, in going from one point or street in the city to another. It is also in proof that children were in the habit of playing upon the turntable, some riding upon the same, while others revolved or turned the same by getting into the pit in which it was located, and pushing it around. The table was of the ordinary construction, and of the same kind- in use by the defendant at various other points on the line of the defendant’s railroad. It revolved easily upon a pivot in the centre, upon which it rested, and at the time of the injury was being pushed around by a lad 15 or 16 years old. It was not kept locked or bolted when
“That the turntable was a dangerous machine, which would be likely to cause injury to children who resorted to it, might fairly be inferred from the injury which actually occurred to the plaintiff. There was the same liability to injury to him, and no greater, than existed with reference to all children. When the jury learned from the evidence that he had suffered serious injury by his foot being caught between the fixed rail of the roadbed and the turning rail on the table, they were justified in believing that there was a probability of the occurrence of such accidents. So, in looking at the remoteness of the machine from inhabited dwellings, when it was proved to the jury that several boys from the hamlet were at play there on this occasion, and that they had been at play upon the turntable on other occasions, and within the observation and to the knowledge of the employes of the defendant, the jury was justified in believing that children would probably resort to it, and that the defendant should have anticipated that such would be the case. As it was the fact on this occasion, so it was to be, expected that the amusement of the boys would have been found in turning this table while they were on it, or about it. This could certainly have been prevented by locking the turntable when not in use by the company. It was not shown that this would cause any considerable expense or inconvenience to the defendant. * * * The jury may well have believed that if the defendant had incurred the trifling expense of replacing the latch, and had taken the slight trouble of putting it in its place, these very small boys would not have taken the pains to lift it out, and thus the whole difficulty would have been avoided. Thus reasoning, the jury would have reached the conclusion that the defendant had omitted the care and attention it ought to have given, that it was negligent, and that its negligence caused the injury to plaintiff.”
In Mullaney v. Spence, 15 Abb. Pr. (N. S.) 319, it was held that the defendant, who operated a coal elevator upon his own land by machinery calculated to attract the curiosity of children, was liable for injury to a child non sui juris, who was attracted into and upon the defendant’s premises, which were not guarded or protected, and was injured, although the child was technically a trespasser upon the defendant’s land; and, although this was the determination of the general term of the city court of Brooklyn, it seems to have been well considered, and the learned judge cites Lynch v. Nurdin, 41 E. C. L. 423; Vale v. Bliss, 50 Barb. 358; Birge v. Gardner, 19 Conn. 506; Whirley v. Whiteman, 1 Head, 610; Mangam v. Railroad Co., 38 N. Y. 455; Cosgrove v. Ogden, 49 N. Y. 255. While the question cannot be regarded as entirely
If we are right in this, the only remaining question is as to the amount of damages in this case.
While the damages in this case are larger than we, sitting as jurors, might have awarded, we must recognize the fact that ordinarily it is the province of jurors, under proper instructions, to-regulate the amount of damages to be awarded in a given case, and that the court should not usurp that prerogative of the jury unless the damages are so disproportionate to the amount of injury suffered as to evince bias, prejudice, or passion on the part of the jury. We fail to see in the amount of this verdict any evidence of the presence of such improper emotions on the part of' the jury. We think the trial judge was right in denying a motion to set aside the verdict as excessive. Judgment and order denying a motion for a new trial affirmed, with costs.
PUTNAM, J. The decision of the court in Walsh v. Railroad Co., 67 Hun, 604, 22 N. Y. Supp. 441, renders an affirmance of the judgment necessary, and I therefore concur.
HERRICK, J., concurs.