Gay v. Essex Electric Street Railway Co.

Morton, J.

The plaintiff relies upon the amended delaratión. It is difficult to understand from it precisely what the cause of action is, or precisely how the injury complained of was received by the plaintiff’s intestate. It would seem, taking the declaration as a whole, that he was not a traveller on the highway, (though there seems to be an allegation to that effect,) nor a mere spectator, injured while looking for a moment at what other children were doing, as was the case in both respects with the plaintiff in Lane v. Atlantic Works, 107 Mass. 104 ; S. C. 111 *240*240 Mass. 136 . As we construe the declaration, it alleges in substance that the defendant left several cars standing in a public street for several days, in violation of a city ordinance, knowing that they would entice children, and that they did in fact entice children to play upon them; that the brake chains were so arranged that, when one brake was wound up, the other would violently unwind and recoil, and that the brakes were not fastened, and the cars were not guarded ; that the plaintiff’s intestate and other children were playing oil the cars, and with the brakes, and that while doing so one of the brakes unwound and caused the injury complained of; that the leaving of the cars in the street, unguarded, and with brakes unfastened, was an invitation by the defendant to the plaintiff’s intestate and other children to play with them, or, if not, that the defendant should have known that the'cars would entice children, and that it was its duty to keep the brakes fastened, and the cars guarded, so that children could not play upon them, and not to do so was negligence on its part, which rendered it liable for the injury to the plaintiff’s intestate.

If the cars had been left standing by the defendant on its own premises, near the highway, in the same condition in which they were left standing in the street, it is clear under the decisions of this court that, however attractive they might have been to children, if the plaintiff’s intestate had been injured by them while at play upon them he would have been a trespasser, and the defendant would not have been liable. Lane v. Atlantic Works, 107 Mass. 104 ; S. C. 111 Mass. 136 . Morrissey v. Eastern Railroad, 126 Mass. 377 . McEachern v. Boston & Maine Railroad, 150 Mass. 515 . Daniels v. New York & New England Railroad, 154 Mass. 349 .

In such a case, the only duty which the defendant would have owed him would have been not to injure him wantonly, or by conduct recklessly careless on its part. Morrissey v. Eastern Railroad, McEachern v. Boston & Maine Railroad, and Daniels v. New York & New England Railroad, ubi supra.

Assuming that there was evidence for the jury of the defendant’s negligence in leaving the cars in the street as it did (see Powell v. Deveney, 3 Cush. 300 ), we then come to the question whether the plaintiff’s intestate is to be regarded as a trespasser *241 and joint actor with the other children; if he is, then the question whether he was in the exercise of due care becomes immaterial. His wrongdoing as a trespasser and joint actor would in such event be a cause contributing to the injury, though in doing what he did he might be doing no more than would naturally be expected from a child of his age. We think he must be regarded as a trespasser and joint actor with the other children. Leaving the cars in the street as it did was not an invitation or license by the defendant to him to play upon them, even though the defendant knew that they were calculated to attract children, and did in fact attract them. Knowledge on the defendant’s part that they attracted children was not an invitation or license to them; otherwise, the fact that one knowingly maintained on his own premises an objept that allured children would constitute an invitation to them. The most that can be said for the plaintiff is, that the defendant, knowing that the cars would be and were attractive to children, was bound to anticipate what actually occurred, and to exercise a corresponding degree of care to see that the cars were securely fastened and guarded, and is liable for an injury occurring to the plaintiff’s intestate through its failure to do so. This assumes that all that the plaintiff is required to show is that his intestate acted as reasonably might be expected of him. But he might do that and still be a wrongdoer and trespasser, and contribute by his conduct to the injury which he received. If he did, then the fact of his youth, and the fact that the defendant’s negligence also contributed to it, would not render the defendant liable. If the cars had been set in motion by other children, and the plaintiff’s intestate had been injured by them while lawfully upon the highway, the defendant clearly would have been liable. Lane v. Atlantic Works, 111 Mass. 136 . But he was using the .highway and the cars for play, and was a joint actor with other children in causing that to happen which resulted in his injury. We might fairly assume, if it were necessary, that a boy ten years of age, and of ordinary intelligence, would know that he had no right to play upon cars which a street railway company had left standing in the streets.

Upon the declaration as we interpret it, we do not think that, under the decisions in this State, the plaintiff is entitled *242 to recover. See eases supra; also McAlpin v. Powell, 70 N. Y. 126 .

It is possible a different result might be reached in the English courts, though the law does not seem to be finally settled there; Lynch v. Nurdin, 1 Q. B. 29; Hughes v. Macfie, 2 H. & C. 744; Mangan v. Atterton, L. R. 1 Ex. 239; Clark v. Chambers, 3 Q. B. D. 327; or in other courts in this country. Railroad Co. v. Stout, 17 Wall. 657 . Keffe v. Milwaukee & St. Paul Railway, 21 Minn. 207, 209 . Kansas Central Railway v. Fitzsimmons, 22 Kans. 686 . Judgment affirmed.