Alabama Great Southern Railroad v. Crocker

131 Ala. 584

• Court: Supreme Court of Alabama
• Decided: November 15, 1901
• Status: Published

Opinion

SHARPE, J.

Ownership of property may carry with it the right of the owner to use and to exclude others from the use of the property, but however exclusive ■may be the owner’s rights,, he is subject always to the maxim “see útero two at alien am, won laedas.” Common prudence forbids that one may arrange even on his own premises that which he knows, or in the exercise of common judgment and prudence ought to know, will naturally attract others into unsuspected danger or great bodily harm. It is the apparent probability of danger rather than rights of property, that determines the duty and measure of care required of the author of such a contrivance, for ordinarily the duty of avoiding known danger to others may under some circumstances operate to require care foil" persons who may be at the place of danger without right.

The averments of this complaint bring the case within the influence of Siour City, etc., R. R. Co. v. Stout, 17 Wall. (U. S.) 657, which is a leading authority in affirmation of the possible liability of railroad companies for negligence in cases of injury to infants trespassing on turn-tables. As appears from cases cited in briefs of counsel, there has been a parting of the way® of judicial opinion concerning the soundness of the decision in Stout's case. Borne courts have repudiated though numerous others have followed it. We adopt a® sound the doctrine there announced concerning both the duty of railroad companies towards infants, and the mode in which the question of negligence should be tried. On the latter point the court applied in that case the general rule which require®, that though the facts bearing on an issue be undisputed, if different ordinarily constituted minds may reasonably and honestly draw different conclusions from those facts the question is properly for the jury and not for the court to, determine.

In this case the trial court ruled properly on the several demurrers to pleadings, and in refusing the charge asked by defendant, but in giving the charge requested by plaintiff there was error for which the judgment must be reversed. The evidence did not estaldish as a legal conclusion that the turn-table, having regard to its construction and situation, was of a kind wlii-gli if left unfastened or unguarded was likely to attract the interference of children, or that the danger was so apparent that the defendant ought in the exercise of ordinary prudence to have anticipated that children would resort to the machine and be injured by it if so left. These conclusions were necessary to fix -on defendant the charge of negligence made by the complaint. It may be that the jury would have supplied them from the facts proven, but to do so was beyond the court’s province.

Beversed and remanded.