Thompson v. Illinois Central R.

1. Negligence. Dangerous condition of premises. Ponds. Demurrer. In a suit for damages by a parent against a railroad company for the death of a nine-year-old child, who was drowned, a demurrer was properly sustained to a declaration which alleged that the defendant railroad company in the conduct of its business purchased one hundred acres of woodland a half mile from the residential portion of a town, and by building a dam across the natural drainage of this land impounded the water therein, forming thereby a lake, that the boy who was drowned with other boys was in the habit of wading in this pond, which fact was known to the agents of-the railroad company or would have been known, had the company placed a watchman over its unenclosed lake, that the boy waded about two hundred and fifty feet in the water and stepped into a “deep hole” in the original drainage ditch or branch and was drowned. 2. Same. In such casé the pond or lake although artificially created, was in nowise different from natural ponds and streams which exist everywhere and which involves the same dangers and present the same appearance and the same attractions to children and under such circumstances no negligence can be imputed to the railroad in failing to fence the pond or to station a watchman to guard it.

Appeal from the circuit court of Pike county. Hon. D. M. Milleb,, Judge. Suit by Sallie Thompson against the Illinois Central Railroad Company. Prom a judgment sustaining a demurrer to plaintiff’s declaration she appeals. The facts are fully stated in the opinion of the court. We respectfully submit that nothing is necessary to secure a reversal of this judgment, except to fully apprehend the facts. What might become of the case, as it develops, by showing the facts in a trial before a jury, we are not now concerned with. What we press home on the court now, is that no demurrer such as this, admitting these facts, can, by any possibility, be sustained in principle or law. The court is familiar with the doctrine of the turntable eases. Those cases all proceed upon the principle that all persons are bound to take knowledge of the habits and instincts of children, and that no proof of their habits or instincts is required. The jury know, as all other persons know, such habits and instincts; this is expressly adjudged in Spengler v. Williams, 6 So. Rep., page 614, at the bottom of the page, the court saying, through Coopee, J.: “All persons are supposed to know the curiosity of children and their disposition to play around and about objects of unusual appearance. No court would permit a verdict to stand which rested upon the denial of such instincts in children, or excused the negligence of the defendant because of the want of specific evidence that he possessed that common knowledge which all men are assumed to have.” To the same effect is Temple v. Electric Light Company, 89 Miss. 7. But besides this, the demurrer in this case admits that the children were attracted to this lake and that defendant knew it. The principle of the turntable cases then proceeds along this line; that a turntable is such an object as does attract children and that, although a child may be a technical trespasser, and said turntable be located on. the defendant’s land, yet, in view of the immaturity of the child, because of the fact that it is a child, it shall not be treated as an adult trespasser would-be, but that the defendant will nevertheless be liable, for the reason that it is negligence in the defendant, as to-children, to leave a turntable unguarded. Kansas Central Railway Company v. Fitzsimmons, 31 Am. Rep. 203; Keffe v. Milwaukee Railway' Company, 18 Am. Rep. 393; Evcmsich v. Gulf Railroad, 44 Am. Rep. 586'. In Gulf, etc., Ry. Co. v. Styron, 1 S. W. 161; Fort Worth, etc., Ry. Co. v. Robertson, 14 L. R. A. 81; Bond v. City Railroad Co., 49 Am. St. Rep. 412; Bridger v. Ashley Railroad Company, 27 S. C. 476; Mackey v. Vicksburg, 2 So.'180 ; Hydraulic Works Co. v. Orr, 83 Pa. St. 332; Keffe v. Railroad Co., 21 Minn. 207; Railroad Co. v. Stout, 17 Wall, 657; Spengler v. Williams, 6 So. 613; City of Pekin v. Patrick McHon (Ill. Sup. Ct.), 27 L. R. A. 206; such are Mackey v: Vicksburg, 64 Miss. 777; Bond v. Shreveport Railroad Co.,- 49 Am. St. Rep. 406-433; Brinkley Car Company v. Cooper, 60 Ark. 545 and Mackey v. Vicksburg, 64 Miss. 777; Powers v. Harlon, 53 Mich. 507. We conclude our citation of cases with one which we-most earnestly commend to the court, Price v. Atchison Water Company, 62 Am. St. Rep. 625. We call the-court’s attention to the fact that, in this case, the minor boy was about eleven years of age and was shown to-be a bright, intelligent boy. He was drowned in one of' the reservoirs of the defendant company. The statement, not borne out at all by the authorities cited in Cyc., vol. 296, 464, that the weight of authority is against liability in this class of cases where excavations or ponds or reservoirs, etc., are involved, is, we submit, not accurate as to the weight of authorities; but. what we especially and most earnestly emphasize for the conrt is, that Mississippi is sqnarely and irrevocably committed to the sounder and more humane view that the principle of the turntable cases applies to any object or situation attractive to children by reason of their childish curiosity or instincts, wherever the defendant has not exercised - due care in guarding against injury to children. The very cases we have cited, the three in our brief above, are cases, first, of an excavation; second, of a pile of lumber; and third, of a spreading oak tree, dangerous and attractive to boys; and the courts throughout the country have cases as I have stated the Mackey case squarely aligning our court with those courts, announcing the true view. If we had no precedent, I should, as I say, entertain not the slightest doubt that this court, as at present constituted, would announce the.doctrine of the Mackey ease, and the Spengler case, and the Temple case, as the true law, because reason and humanity enforce that view. But I want, in conclusion, to call the court’s attention to the fact that we are not trying a case which the defendant won before a jury, but we are trying a case in which his demurrer admits every proposition necessary to recovery, to be true. All these questions of fact, to wit: First, whether the parent, the mother, had been guilty of such contributory negligence as would bar her; and second, whether this child, not nine years old, was of sufficient degree and maturity of intelligence to have contributory negligence applied to him, if it existed; and, third, whether the lake was in fact attractive to the children; and, fourth, whether the defendant knew or ought to have known that it was so; and fifth, whether defendant knew, or with the exercise of ordinary care, should have known that children bathed and waded in said lake; and sixth, whether the public path was near the lake and that children, and the public generally, used that path daily, with the knowledge and consent of the defendant; and seventh, whether the bathing and wading in said water of said lake was done daily with the permission and with the knowledge and consent of the defendant, each and all of these facts, every one of which is averred to have existed in the declaration, and admitted to have existed, by the demurrer, should, of course, have been submitted'to a jury as questions of fact, and not determined by the court on demurrer. ‘2The question of defendant’s care is for the jury.” At page 414 about midway the page, he says again, quoting from Sheatmen & Redfield on Negligence, vol. 107, sec. 99: “It is not necessary that the defendant should actually know of the danger to which plaintiff is exposed. It is enough if he has sufficient notice or belief to put a prudent man on the alert, if he does not take such precautions as a prudent man would take under similar notice or belief, he is liable.” And Mr. Freeman adds immediately: “And this doctrine has been applied to cases of injury to children.” And this declaration, let me again say, avers specifically that the defendant was negligent; that it took no care; that he gave no warning; published no notice, and guarded, in no way, against the danger, although knowing that this child, and other children, had been in the habit of daily wading and swimming in this lake; and that, too, with the full knowledge and consent of the said defendant. We refer without quotations, to the following other authorities: Hydraulic Works Co. v. Orr, 83 Pa. St. 332, adopted and approved by Coopbe, J.: Mackey v. Vicksburg, 2 So. 180; Young v. Harny, 16 Ind. 314; Lepwick v. Gaddis, 26 L. R. A. 686; Kansas Cent. Ry. Co. v. Fitz-simmons, 31 Am. Rep. 203. Plaving, now, analyzed the declaration and the demurrer and shown, first, that the mere reading of this declaration ought certainly to secure the reversal of this judgment; and having in the second place, carefully analyzed the authorities showing what the turntable doctrine is, that is, what the principle is, underlying the turntable cases, and that that principle has been adopted in this state, and applied by this supreme court, properly to any and all objects attractive to children, whether excavations, ponds or lakes, piles of lumber, or attractive small oak trees, we do submit, with the utmost confidence, that this court should promptly reverse the judgment of the court below, and overrule the demurrer; that this case may be tried in the full light of all the facts, and not be shunted off upon a demurrer unadvisedly taken, admitting facts which could not be admitted with any possibility of having such demurrer sustained. The one striking feature about the brief of appellant is that none of the latest adjudications on this interesting topic are considered therein. Whether counsel was investigating in the American State Reports, or in the L. R. A., that investigation seems to have stopped short about twenty years ago, and does not extend to, or include the later adjudications, including the Vermont case of the year 1911, in which the courts have reached a conclusion precisely the opposite of that for which appellant contends. That case is Bottum v. Hawks (decided in 1911), 35 L. R. A., New Series, page 440. “To keep within the established principles of the common law, the question of liability in cases of this kind should be made to turn on the presence or absence of an invitation, on the part of the owner. A naked trespasser or bare licensee enters for purposes of his own; he acts for his own benefit or convenience; and the owner gains nothing. But, if invited, one enters not alone from motives of his own, uncontributed to by the act of the owner, but is induced, in some measure, by the conduct of the latter. The owner, in contemplation of law, gains something from the arrangement, though his advantage need not Tbe a pecuniary one. The invitation carries with, it some measure of assurance of. safety, which the, owner must make good by the exercise of active care, if necessary. Without an invitation, express or implied, no duty of active care arises. Such invitation is implied whenever one makes such use of another’s premises or something found, thereon as the owner intends he shall, or such as he is reasonably justified in understanding the owner intended. Sweeny v. Old Colony é N. R. Co., 10 Allen, 368, 87 Am. Dec. 644; Turess v. N. 7., S. S W. R. Co., 61 N. J. L., 314, 40 AtL 614. “Neither silence, acquiescence, nor permission, however,. standing alone, is sufficient to establish an invitation. A license may thus he created, hut not an invitation. The infancy of the party injured does not change the situation. He enters as a trespasser, licensee, or invited person, according to the same circumstances which control in the case of an adult. “When the question of his contributory negligence arises, his age, intelligence and want of experience are to be considered; and, when the owner’s duty toward him is established, these factors must be taken account of in determining whether the owner’s conduct measures up to the legal standard. That invitation is necessary to the establishment of a duty of active care in cases of this class is, as we have seen, recognized in the Keffe case,, which, it is generally admitted, contains the strongest presentation of the arguments in support of the doctrine under discussion. Such cases (wrongly, we think) find such invitation in the attractiveness of the object causing the injury. ’ ’ The latest case cited by appellants from the American State Beports, is Barnes v. R. R. Co., page 400, decided in 1895, annotated by Mr. Freeman, and appellant’s counsel say that “we commend this note as covering completely the whole ground here involved.” We hardly understand that commendation. As we read the note, on page 423, that part of it which hears in this special topic of “injury to child occasioned by . . . pools of water, and other like agencies . . .” the note sustains the judgment of the court below in this case, and does not militate against it. But even if the note were otherwise, and did not sustain appellant, we cite the court to the still later case of Wheeling, etc., B. Go. v. Harvey, and of Swartz v. Akron Water Works Co., 122 Am. St. Rep. 503-522. The case of Keffe v. Milwaukee By. Go., 21 Minn. 207, cited and relied on by appellant, was one of the earliest state cases in support of the turntable doctrine, and is generally admitted to contain the strongest presentation of the arguments in support of it; but even in that case it is recognized that an invitation is necessary to the establishment of a duty of active care in cases of this class. It is therefore interesting and instructive to turn to the later case of Stendal v. Boyd, 42 L. R. A. 288, decided in 1898, in which the supreme court of Minnesota itself speaks of the Keffe case and those following in time. A child four years and ten months old was drowned in a pool. The court said: “The rule that if a landowner makes a dangerous excavation on his land adjoining a street or highway, into which a person rightfully in the street falls, the owner is liable, has no application to this case. It is sought, however, to hold the defendant liable upon the facts stated upon the principle of the 'Turntable Cases.’ Keffe v. Mikvaukee & St. P. B. Go., 21 Minn. 207, 18 Am. Rep. 393; O’Malley v. St. Paul, M. & M. B. Go., 43 Minn. 289. The liability of a landowner to children who are induced to come upon his premises by reason of attractive and dangerous machinery thereon was carefully limited in the original -decision, and the limitations have been enforced by the subsequent decisions of this court. In the case of hoist v. Winona & St. P. B. Go., 39 Minn. 233; Batt v. Dawson, 50 Minn. 450, and the opinion on the former appeal in this case, 67 Minn. 279; Peters v. Bowman, 115 Cal. 345, 355, 7 Am. and Eng. Ency. Law (2 Ed.), pp. 403, 404. “The tendency of the more recent decisions seems to be in favor of the doctrine last mentioned, and we are of opinion that, upon principle, it is the stronger side of the question.” See, also, Moran v. Pullman Car Co., 134 Mo. 541; Dobbins v. Missouri, etc., R. Co., 91 Tex. 60; Richards v. Connell, 45 Neb. 467; Peters v. Bowman, 115 Cal. 345. These are all cited in the Vermont case, supra-, they are to the same effect. See, also, Salladt v. Mining Co., 12 Ariz. 124; Indianapolis Water Co. v. Harold, 170 Ind. 170; Bloom v. Weatherford, 121 La. 248; Scroggins v. Cement Co., 60 So. (Ala.) 175,178. Mark elaborate notes to cases in 19 L. R. A., New Series, 1094. In their brief counsel for appellant insist that this court “is squarely and irrevocably committed to the sounder and more humane view that the principle of the turntable cases applies to any object or situation attractive to children by reason of their childish curiosity or instincts, wherever the defendant has not exercised due care in guarding against injury to children.” To support this assertion of square and irrevocable committal of this court, etc., counsel rely on Mackey v. Vicksburg, 64 Miss. 777; Spengler v. Williams, Cl Miss. 1-, and on Temple v. Electric Light Co., 89 Miss. 1. None of these cases establishes any such doctrine. In Mackey v. Vicksburg, supra, on page 783, the court, in express terms, disclaims any consideration of the question whether any liability would have rested upon the defendant if nothing further had been alleged than that it cut a precipice upon a part of Sky Hill, and that plaintiff went upon the hill, fell therefrom, and was injured. Thus the court expressly disavows applying the principle of the turntable cases to “any object,” etc. And what the court did do was to decide about a case which itself states thus: “It is averred in the declaration, and the demurrer admits it to be true, that the defendant deposited the dirt cut from the hill upon the rear of the plaintiff’s lot, by means whereof he was enabled and invited to escape from his enclosure and to go upon the precipitous and dangerous path cut along the hill and leading from the place of escape to the point of danger from which he fell. Under these circumstances we think a question of fact is presented which ought to be submitted to the jury.” Thus it will be seen that the city had' actually invaded the residence lot of the child, and had made a continuous causeway leading to the path, and up the hill; and so had invited this particular child, who there lived, to wander along it. In Spengler v. Williams, supra, the question was not considered or alluded to. The defendant was there charged with piling lumber in a public street, in an irregular, unsafe and dangerous manner, which lumber fell on the child by reason of the careless and negligent manner in which it had been piled. The declaration alleged that defendant knew that the lumber pile in the street was calculated to attract children. On the trial there was no evidence of this knowledge; and on appeal the only question passed on by this court was, that such proof was not necessary; that such attractiveness to children was common knowledge, and that both the court and the jury would know it without proof. This case, so far from telling for the appellant, is a square decision against her on the point of practice, insofar as the necessity of submitting to any jury the question of children’s habits in playing about, is concerned. In Temple v. Electric Light Go-., 89 Miss. 1, the question was not involved or alluded to. The declaration showed that defendant had “negligently removed the insulation from its wires at a place where they passed through the limbs of a tree which had numerous branches; ’ ’ that this was in the public street, and was a menace to human life. The defendant sought to avoid liability for such admitted negiig’ence about this specially dangerous appliance overhanging a public street, by claiming that the appliance was strung where persons were not likely to come in contact with it, and that defendant had no reason to know that people would climb the tree and get in reach of it. What the company was held for, was, not for planting or arranging the tree, which attracted the child; but for negligently removing the insulation from its overhanging wires. It does not' touch the case at bar, in any point. In conclusion, we deem it hardly necessary to make any response to the assertion contained in the brief for appellant, for it is nothing more than an assertion, that the view for which they contend is “the sounder and more humane view.” This is not a discussion of hu-manics, but of law. The safe and proper thing for this court to do is, not to search about to find anything but what the law is. If the law needs changing, that, as is stated in several of the opinions stated above, is the function of the legislature.