Berry v. St. Louis, Memphis & Southeastern Railroad

114 S.W. 27, 214 Mo. 593, 1908 Mo. LEXIS 254

• Court: Supreme Court of Missouri
• Decided: November 25, 1908
• Status: Published

Opinion

LAMM, J.

In the Butler Circuit Court, Cecil Berry, a child of four years, sued by his next friend in an action sounding in tort. He had judgment for $6,583.33, for personal injuries received'on defendant’s turntable. Failing to get a new .trial or arrest the judgment, defendant appeals.

I. The St. Louis & San Francisco Bailroad Company was made a codefendant at the institution of the suit. Appellant insists that the cause was not dismissed as to its said codefendant; contra, respondent insists it was so dismissed prior to submission. Appellant’s abstract does not show a dismisal,, neither does it purport to be a full transcript of all the record entries; neither does respondent furnish a counter or additional abstract. In this fix, with no claim that a full transcript of the record entries is here and with no counter abstract furnished, the parties litigant assert, in their respective statements of the case, on the one hand there was no such dismissal and on the other that there was a dismissal.

The record sufficiently shows the St. Louis & San Francisco Bailroad Company took no appeal. It shows affirmatively that no judgment- was rendered against it, that there was no proof offered tending to show Cecil was injured through its negligence or that it owned or operated the railroad to which the turntable was appurtenant. The instructions show that no issue was submitted to the jury touching the liability of the St. Louis & San Francisco Bailroad Company. To the contrary, the issues submitted involved appellant by name, and appellant only.

As we see it, while appellant complains in its statement of the above condition of the record, yet it does not in its brief proper press the point as reversible error. However, if it does, the position is unsound; because:

(a) Absent a record showing one way or the other, the presumption is in favor of the regularity of the judgment of a court of general jurisdiction — ■ i.. e., a dismissal would be presumed, or that such antecedent steps were taken as made a judgment against one of two defendants regular.

(b) Moreover, at the very worst on the record before us the matter complained of does not a particle affect the rights of the appellant on the merits of the case. If it is liable at all it is liable for the whole harm done the child. Therefore, the presence or absence of its codefendant as a party to the judgment or to the suit cuts no figure on the merits; for it .is primer law that if A and B negligently injure C, C may recover his damage's from one or the other or both. [Newcomb v. Railroad, 169 Mo. 409.] “A person,” says Bishop (Bishop on Non-Contract Law, sec. 573) “who has done any part of a wrong working harm to another, or even contributed his will to do it, is responsible to him in damages for the entire harm, however many other individuals, forces and things may have co-operated in bringing about the mischief. " [Neff v. City of Cameron, 213 Mo. 350.]

The matter complained of is no concern of appellant, it causes its liability to neither shrink nor swell, wax nor wane. It impairs appellant’s defenses not a whit. It is ordained by statute that only harmful. error will work a reversal. Before we can reverse a judgment, we must “believe that error was committed by such court against the appellant or plaintiff in error, and materially effecting the merits of the action.” [R. S. 1899, sec. 865.]

Not believing such to be the case, the point, if point it be, is ruled against appellant.

II. As one ground for arresting the judgment, it was alleged in the motion for arrest there was no proof offered that the Hon. David W. Hill was duly appointed next friend. This is so. Appellant assigns error in overruling the motion in arrest. Counsel do not press the point in hand as reversible error, as we gather from their brief. But if we are mistaken in this, there is no soundness in it. This is so, because :

The answer was a general denial coupled with affirmative allegations not material to the question now up. With the pleadings in this fix, was there a call for respondent to prove the due appointment of his next friend? The answer to that query is, No. Undoubtedly the general rule is that a general denial puts plaintiff on his proof. But there are exceptions grafted on the stock of the general rule and the particular in hand is controlled by one of them. In the philosophy of the science of pleading, the issue of the appointment of next friend cannot be raised by a mere general denial. If the defect struck at appears in the petition it might (possibly) be raised by special demurrer. '.Otherwise, it should be raised by a special plea in the answer. Therefore, it is the established practice that where the petition alleges a given person is a lawfully appointed and duly qualified next friend and there is no specific denial Of that averment, it will be taken as admitted. This is1 so whether proof was introduced to sustain it or not. ’The precise question, once mooted and for a season troublesome, was exhaustively considered and finally settled and put at rest In Banc in Baxter v. Railroad, 198 Mo. 1 (q. v.).

The point is ruled against appellant.

III. There is no question raised on the pleadings. There is no question made on the size of the verdict. If defendant is liable at all, the compensation awarded was little enough. Cecil’s right ankle was smashed. All the bones of the leg immediately above the ankle were splintered. The foot was left connected with the leg by a mere ligament, or strip' of flesh. The injury was such a capital oue that a perfect union of the bones was not formed and he is left a deformed cripple for life. Moreover, there is (and could be) no question raised of the contributory negligence of the child. A child may be of such an age that whether he is or can be guilty of negligence under the circumstances of a given case is a question of fact for the jury, and such is the usual case. He may have arrived at such degree of maturity in age and judgment that the court might say as a matter Of law he could be guilty of contributory negligence. On the other hand, he may be so tender in age and infantile in judgment that the court as a matter of law might rule he could not be guilty of contributory negligence in the circumstances of a given case. .This child, under the facts here, came within the latter class. He was non sui juris. [Holmes v. Railroad, 190 Mo. l. c. 105, et seq.; Cornovski v. Railroad, 207 Mo. l. c. 273, et seq.; Donahoe v. Railroad, 83 Mo. l. c. 565; Frick v. Railroad, 75 Mo. l. c. 608; O’Flaherty v. Railroad, 45 Mo. l. c. 74.]

IY. Before considering other questions raised, it will be useful to shortly state the facts, viz.:

It was alleged in the petition and admitted by the answer that defendant owned and operated a railroad, and turntable appurtenant, in the city of Poplar Bluff, on the 24th of March, 1904, and that Cecil was hurt on said turntable on said date.

It was alleged in the petition and shown by the proof that this turntable was not isolated, but was located in an open place adjoining public highways in said city and which place was used as a playground for children, either passing on their way to and from a near-by public school, or otherwise attracted there. That the table was on defendant’s private property, was not.kept fastened, enclosed or guarded in any way so as to bar the ready access of children to it, or their use of it. That it was a most dangerous contrivance for a child to play with; that it had been left unfastened and unguarded for several months prior to the accident and during that time the town children openly resorted to it and played with it by revolving it and riding thereon as a sort of “merry-go-round;” and that defendant either knew or by the exercise of ordinary care and caution could have known this was so. The uncontradicted proof also shows that the table was so poised and adjusted as to be easily manipulated by little children; that its plan contemplated it should be kept locked, but this precaution had been abandoned by defendant; that Cecil lived with his parents about 184 feet from it; that there was no fence or other barrier between his home and it except a single railroad track on level ground; that on the day in question he went there, with his little brother five years old, and a lad (named Barth) about fifteen years old, to play on the turntable; and that while Barth was revolving it and Cecil was riding round on it his ankle was caught •between one of the rails on the table and a rail on a spur track leading to- it and ruined as aforesaid.

It was alleged in the answer and denied by some of plaintiff’s witnesses, but defendant introduced evidence tending to show, that Cecil’s mother told Barth to take the children to play on the turntable. Defendant also put in proof tending to show that the child was allowed by its parents to play there at other times. Contra, plaintiff put in proof tending to show those things were not true. The turntable is not fully described in the record, but it seems to have been an ordinary, heavy, railroad turntable, used to turn locomotives end for end, and one witness said it looked like a “flying jenny,” whatever that may be.

On the facts thus outlined, plaintiff asked but one instruction following closely the allegations of the petition and the proof. In that instruction plaintiff put it to the jury to find that he was injured without the fault of his parents. The triers of fact were told that before they could find for plaintiff they must find that he went to the turntable without the knowledge and consent and against the wishes of his parents. The court also gave for defendant an instruction which imputed the negligence, if any, of the parents to plaintiff and they were flatly told that if the parents were negligent the plaintiff could not recover.

The court refused to instruct that if Barth and plaintiff’s little brother were negligent in taking Cecil to the turntable and putting it in motion, then plaintiff could not recover; and refused instructions which told the jury that plaintiff was a trespasser and there was no liability, if the turntable was located on the private property of defendant away from any public thoroughfare or place and was constructed in the usual way and used in the railroad business of defendant and to which Cecil had no access except by going across defendant’s main railroad track and onto its private property, if he went there without the permission of defendant. That if plaintiff’s mother put him in the custody of Barth with the general direction to go- and play there and if Barth took plaintiff and his brother to the turntable and put them on it and put the table in motion and caused the injury, then the verdict must be for defendant. By still other instructions the defendant asked the court to- declare as a matter of law that plaintiff could not recover.

It is not necessary to swell the case by setting out the instructions in full, because the main propositions relied on by appellant may be crystallized into- two, viz.:

(1) That the doctrine of those cases in this court, known to the bar as the turntable cases, is- unsound and we are asked to explode it.

(2) The other proposition is outlined by defendant’s counsel as follows:

‘ ‘ The case was tried on the theory that if a child was sent there by the mother, the negligence of the mother in sending the child was imputable to the child. The position of the defendant is, and was at the time of the trial, that although she might not have sent her children there, yet she placed them in the hands of this witness, Charley Barth, and he took them there. He says he took them by her instructions, and she, of course, denies that, but the defendant takes the position that although she might not have directed he take them there, yet he did take them there and had them in charge and put them on the turntable, and he started the turntable in motion and caused the injury; that any act of his in placing the children on the turntable and putting it in motion was negligence on his part and imputable to plaintiff, and, therefore, the plaintiff is not entitled to recover.”

It will be seen, therefore, that both propositions are here for determination. Is either sound?

(a) Of imputed negligence. The proposition that the negligence of the parent (or another) may be imputed to the child as á bar to liability on the part of a negligent defendant, in the infant’s suit, has received full and new consideration at the hands of this court in a very late case. [Neff v. City of Cameron, supra.] In that case we were asked to re-examine and alter the position of this court on that question. The result was that we refused to subscribe to the notion that the negligent sins of parents (or third parties) may be visited on the head of an innocent child in adjudicating the rights of the child itself. If parents sue in tbeir own right to recover damages for injury to their child, a negligent defendant may defend by proving their concurrent negligence, but such doctrine is unsound and harsh when applied to the infant who sues in its own right. I may not avoid liability by saying: “I was negligent, it is true. If I had not been negligent- the child would not have been injured. But a third person — a parent, a nurse, a maid, a grandmother — contributed to the injury of the child and therefore I am not liable.” On the reasoning of the Neff case, and controlled by our former adjudications therein cited, refusing to impute the negligence of the parent to the child, the point is ruled against appellant.

And this should be so although plaintiff’s own instruction was more favorable to defendant on that score than is the written law. Such excess of favor, in taking on and carrying an unnecessary burden, is not error of which a defendant (so favored) may take advantage. To allow a litig-ant who has had the advantage of his antagonist’s assuming unnecessarily a laboring oar, to bottom a right on appeal on that advantage, would be the same as if B, distanced in a foot race, would challenge the event because A, who won the monejr, chose to carry weight in the sprint or was too fat to run well.

(b) Of the turntable cases. The doctrine of these cases is based on an exception to the general rule of law that the land-owner owes no duty to trespassers or volunteers, going upon his land for their own purposes, to maintain it in any particular condition for their benefit.

Those courts maintaining the exception have shown an observable ingenuity (but have not been uniform), in formulating the principles underlying the exception. In some instances the exception has been bottomed on the wise Latin maxim of Lord Coke [9 Coke, 59], prohibetur ne quis facicit in suo quod nocere possit alieno — which, under the liberal gloss of a scholar, is said to mean that, “It is prohibited for one to do on his own property that which may injure another’s.” Again, the exception has been maintained under the law of nuisance. Generally speaking, if a nuisance is created, and any one is injured by the nuisance in any particular manner, and not in common with the public, an action of negligence will lie. [Webb’s Whittaker’s Smith on Negligence (2 Ed.), pp. 73-4.] Now, a dangerous machine like a turntable, easily manipulated by children, has been said to be “an attractive nuisance” as to them, when exposed in a public and unguarded place where they resort, and when the scienter (as here) is clearly shown.

In 1873 the Supreme Court of the United States held in judgment a case in which a child was injured on an unguarded and unlocked turntable located in a public place where children resorted with the knowledge of defendant railroad. [Railroad v. Stout, 17 Wall. 657.] The child was technically a trespasser. At the trial on the circuit, Dillon, circuit judge, among other charges to the jury charged as follows :

“The machine in question is part of the defendant’s road and was lawfully constructed where it was. If the railroad company did not know, and had no good reason to suppose, that children would resort to the turntable to play, or did not know, or had no good reason to suppose, that if they resorted there they would be likely to get injured thereby, then you cannot find a verdict against them. But if the defendants did know, or had good reason to believe, under the circumstances of the case, that the children of the place would resort to the turntable to play, and if they did they would or might be injured, then, if they took no means to keep the children away, and no means to prevent accidents, they would be guilty of negligence, and would be answerable for damages caused to children by such negligence.”

That charge was held a proper statement of the law by the Supreme Court of the United States (see, also, Railroad v. McDonald, 152 U. S. 273-4), and we see nothing wrong with it. It seems to us good law and good ethics. To hold otherwise would he to exalt mere money and property and put down humanity — would be to offend against little ones, and there is high authority for the proposition that it were better that a millstone were hung about the neck for drowning purposes than that such offense be given. In some cases it is said that considering the instincts and the curiosity of a little child the principle that protects him in the turntable cases is the same that protects my turkeys against being tolled by grains of corn into my neighbor’s trap, and protects my dog against being tolled by scented meat into a like fix.

The Stout case was put somewhat upon Lynch v. Nurdin, 41 E. C. L. 422, 1 A. & E. (N. S.) 29. In the Lynch case defendant’s carman left his horse and cart standing in the street for about half an hour without any person to take care of them. Plaintiff, a lad of about seven years, with several other children, was playing with the horse and around the cart. Plaintiff got on the cart. Another boy lead the horse on while plaintiff was attempting to get off the shaft. The plaintiff fell, was run over by the wheel, and his leg broken. In sustaining the judgment Lqrd Denman, C. J., among other things, said: “The most blamable carelessness of his [defendant’s] servant having tempted the child, he ought not to reproach the child with yielding to that temptation. He has been the real and only cause of the mischief. ’ ’ The Lynch case has been followed as sound law by later English cases. In Harrold v. Watney, L. R. 2 Q. B. Div. (1898) l. c. 322, Smith, L. J., said: “That case [the Lynch case] has never been overruled, but has been treated in subsequent cases as sound law.” In McDowall v. Railroad, L. R. 1 K. B. Div. (1902) l. c. 624, Kennedy, J., who delivered the judgment, quoted approvingly from Lynch v. Nurdin. So did Leonard, J., in Morgan v. Cox, 22 Mo. l. c. 378. Wagner, J., cited it with, approval in Boland v. Railroad, 36 Mo. l. c. 491. See, also, Walsh v. Transportation Co., 52 Mo. l. c. 439. In the McDonald case, supra, Mr. Justice Harlan, for the Supreme Court of the Hnited States, re-examined the doctrine of the Lynch case and reaffirmed it. It was there suggested that the case had heen repudiated in the English courts. But Justice Harlan questioned the correctness of that criticism. He. pointed out that the English case relied on to sustain it (Mangan v. Atterton, L. R. 1 Ex. 239) had in turn been questioned by Lord Chief Justice Cockburn in Clark v. Chambers, L. R. 3 Q. B. Div. 327.

Other eases sustaining the exception have put liability somewhat on the ground of enticement, allurement and implied invitation. [Keffe v. Railroad, 21 Minn. 207.] In the course of the opinion in the Keffe ease it was said, arguendo: “Now, what an express invitation would be to an adult, the temptation of an attractive plaything is to the child of tender years. If the defendant had left this turntable unfastened for the purpose of attracting young children to play upon it, knowing the danger into which it was alluring them, it certainly would be no defense to an action by the plaintiff, who had been attracted to the turntable and injured, to say that the plaintiff was a trespasser, and that his childish instincts were no excuse for his trespass. . . . It is true that the defendant did not leave the turntable unfastened for the purpose of injuring young children; and if the defendant had no reason to believe that the unfastened turntable was likely to attract and to injure young children, then the defendant would not be bound to use care to protect from injury the children that it had no good reason to suppose were in any danger. But the complaint states that the defendant knew that the turntable, when left unfastened, was easily revolved; that, when left unfastened, it was very attractive, and when put in motion by them, dangerous to young children; and knew also that many children were in the habit of going upon it to play. The defendant, therefore, knew that by leaving this turntable unfastened and unguarded, it was not merely inviting young children to come upon the turntable, but was holding out an allurement, which, acting upon the natural instincts by which such children are controlled, drew them by those instincts into hidden danger.”

The exception to the general rule has been allowed as good law in this State in Koons v. Railroad, 65 Mo. 592; Nagel v. Railroad, 75 Mo. 653 — both turntable cases — and has been allowed by courts of last resort in many States. For instance, in California, Nebraska, Kansas, Iowa, Washington, Tennessee, Georgia, Louisiana, South Carolina, Texas, Arkansas, Illinois, Indiana, Kentucky and Mississippi. [See, authorities cited in respondent’s brief. See, also, a leading article in vol. 66, Central Law Journal, p. 137 et seq., by Mr. Kenner.]

Mr. Kenner (happily it seems to me) lays down the following sensible rules as based upon reason and supported by the decided weight of authority:

“ A railroad company is liable for injuries to trespassing children playing upon its turntables, when the same have been left unlocked and in a public neighborhood where children would reasonably be expected to play. The most logical opinions so holding, are based upon the following grounds and reasons: (1) A turntable is a dangerous machine, created by the act of its owner; it is attractive to 'children and if publicly located and kept unlocked is a nuisance. (2) It can bé easily locked and made safe when not in use. (3) A turntable, existing under the above-named conditions, is an inducement and implied invitation to children and hence when injured thereon, they cannot he treated as voluntary trespassers. (4) Taking into consideration the childish instincts of children, a turntable existing under the above conditions acts as an allurement into a hidden danger or trap.” [1 Thomp. on Negligence, sec. 1036, et seq.; Ibid, vol. 2, sec. 1827.]

That the doctrine of the exception to the general rule is unsound has been maintained by courts of last resort possibly in Pennsylvania, New Jersey, Ohio, New Hampshire, New York, Massachusetts, Virginia and Michigan — though it had the support of a great judge, Cooley, in an early case in the Supreme Court of Michigan. The latest ease coming under our eye is Railroad v. Harvey, 77 Ohio St. 235, and the pryinglegal mind may find in that case all the authorities marshalled pro and con. A review of those authorities led that learned court to overrule, in effect, some of its own earlier cases. But we are not prepared to admit that the doctrine underlying the turntable cases is odious to justice, or unsound in principle, and therefore we shall not overrule Nagel v. Railroad and Koons v. Railroad, supra.

This defendant in violation of the law, as written by this court, in a city of four or five thousand souls, permitted a dangerous machine, attractive to children as a plaything, to remain unguarded and unlocked for a long time at a place to which children habitually resorted and upon which machine they were permitted to play without defendant’s lifting a finger to prevent it. The facts of the case amount to an invitation to children to use the machine. Under such circumstances it violated its social duty and we shall not help it to escape liability.

We see no reversible error, and the judgment is affirmed.

All concur.