The opinion of the court was delivered by
HortoN, C. J.:
In support of the judgment, the cases of Railway Co. v. Fitzsimmons, 22 Kas. 686, and Railway Co. v. Dunden, 37 id. 1, are cited as decisive. In the first case, it is stated in the opinion that the turntable “was left without locks or fastenings, and without being watched or guarded, or even fenced in.” In the other case, it was expressly alleged and proved upon the trial that the turntable “was near a public highway, in an open common, where people frequently and customarily passed, and where boys often played, with the knowledge of the railway company, and that the turntable was not locked, fastened, or fenced in.” These cases follow Railroad Co. v. Stout, 84 U. S. 657. In that case, the turntable was also near a traveled road, in an open space, not in any way inclosed. There it was shown that the boys had, previously to the injury complained of, played upon the turntable in sight of the railroad employés not far distant. In this case, the defective gate which fell, causing the death of the little boy, was inside of the stock yards, not an outside gate. For anyone to play or swing upon the inside gate, it was necessary to go through an outside gate or climb over the fence or inclosure of the stock yards. The jury specially found that the boy did not go‘into the stock yards by the direction of the company, or with its knowledge or consent. They further found that the agent had closed the outside gate on the evening before the injury, and no evidence was offered tending to show that it was afterwards opened by the authority of the company.
The preponderance of the evidence is to the effect that the outside gate was closed at the time of the injury, and that the boys swinging upon the inside gate went into the stock yards by climbing over an outside gate. The evidence of Johnnie Young, a little boy about eight years old, who was with Er[288]*288nest Bockoven swinging on the inside gate at the time it fell, introduced to prove that the outside gate was open on the morning of the injury, is very unsatisfactory. He testified “ that he and Earnest went into the stock yards when the outside gate was opened; that they walked right through the gate.” Upon cross-examination, he testified ‘‘that they climbed over the gate going in; that he climbed over the fence of the stock yards going out,” and that he told Harding, the depot agent, “that the outside gate was closed.” Upon reexamination he said “ he went into the gate, and then climbed up on the fence.” Harding testified that Young told him “he didn’t go in the gate because it was closed.” There was no finding of the jury that children, with the knowledge of the company, were in the habit of climbing over the outside gate or inclosuré of the stock yards for the purpose of playing or swinging upon the inside gate or fence. Evidence was offered to show that the outside gate was usually left open. When objection was made to the introduction of this evidence, the. counsel for plaintiff below stated “that the' object was to prove negligence in leaving the outside gate open and the inside gates in the condition they were.” This evidence was admitted, and was then attempted to be followed up by the further evidence of Johnnie Young, that the gate was open on the morning the little boy was killed, and that the boys went into the stock yards through the open gate.
1. Dangerous premises— injury to child-liability.
[289]*2892 Railroad Sigence-■when nabie. [288]*288We are not willing to extend the rule declared by this court in the Fitzsimmons and Dunden cases. In some of the courts, the rule in those cases has been questioned, and in others denied. We think if the stock yards within which the little boy was killed had a sufficient fence or inclosure around them, with safe and secure outside gates, and the boys reached the inside gate, which subsequently fell, by climbing over the outside gate, or any other part of the inclosure, there would be no liability upon the part of the railroad company. If, with the consent or knowledge of the railroad company, children frequently climbed over the outside gate or inclosure of the stock yards, [289]*289and played or swung upon the inside gate, in a defective and dangerous condition, under certain circumstances, such negligence might be established as to create a liability f°r any injury resulting to such children from a ga^e knowingly left in a dangerous condition. If the outside gate was generally left open, in consequence of which children frequently went inside of the yards and played ©r swung on the defective inside gate, and all of this was with the consent or knowledge of the company, and if on the morning that the little boy was killed, the outside gate was open, and the boys entered the yards through the open gate, a liability might rest upon the company, if the parents were not negligent in suffering the boy to be exposed to such danger. If the railroad company had knowledge that little children frequently played in the vicinity or around the stock yards, and if the outside gate was open upon the morning of the injury, without the authority of the railroad company, the question might arise whether, after being opened, it was negligently permitted to remain open.
An open door or gate to an inclosure or other premises where children frequently play would be very apt to excite their curiosity, and is something in the way of a permission or an invitation to enter such inclosure or premises, and a little boy in going through an open gate or door around which he is playing would be indulging in the natural instinct of a child. On the other hand, an inclosure with safe and secure gates which are closed is a bar or prohibition for anyone to enter within. It does not appear from the evidence that little children could open the outside gate of the stock yards when closed or shut. Where an action for a negligent injury to an infant is brought by the parent, it is very justly held that the contributory negligence of such parent may be shown in bar, (Beach, Contrib. Neg., 2d ed., § 131,) but it is otherwise if the action is brought by the infant or by a next friend for the benefit of the infant. (4 Am. Law Rev. 405, and cases cited.)
The jury were asked, “At the time of the injury, were the [290]*290outside gates of the yards found to be open or closed ? ” The answer was, “Children entered and closed it.” This was not a direct answer. It was evasive. There was testimony bearing directly upon the question submitted, and it should have been answered fairly by the jury. As we view the case, it was important to determine in what manner the boys reached the inside gate which fell. Upon the findings of the jury, if the stock yards were properly inclosed, and the outside gate sufficiently safe and secure when the boys entered the yards, there was no negligence on the part of the company to render it liable. If it were proved that on one occasion only, prior to the injury, children were in the stock yards and were ordered away at once by the company or its agent, and under such direction left the yards, that of itself would not establish knowledge on the part of the company of any habit or practice of children resorting to the yards for play.
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The opinion of the court was delivered by
HortoN, C. J.:
In support of the judgment, the cases of Railway Co. v. Fitzsimmons, 22 Kas. 686, and Railway Co. v. Dunden, 37 id. 1, are cited as decisive. In the first case, it is stated in the opinion that the turntable “was left without locks or fastenings, and without being watched or guarded, or even fenced in.” In the other case, it was expressly alleged and proved upon the trial that the turntable “was near a public highway, in an open common, where people frequently and customarily passed, and where boys often played, with the knowledge of the railway company, and that the turntable was not locked, fastened, or fenced in.” These cases follow Railroad Co. v. Stout, 84 U. S. 657. In that case, the turntable was also near a traveled road, in an open space, not in any way inclosed. There it was shown that the boys had, previously to the injury complained of, played upon the turntable in sight of the railroad employés not far distant. In this case, the defective gate which fell, causing the death of the little boy, was inside of the stock yards, not an outside gate. For anyone to play or swing upon the inside gate, it was necessary to go through an outside gate or climb over the fence or inclosure of the stock yards. The jury specially found that the boy did not go‘into the stock yards by the direction of the company, or with its knowledge or consent. They further found that the agent had closed the outside gate on the evening before the injury, and no evidence was offered tending to show that it was afterwards opened by the authority of the company.
The preponderance of the evidence is to the effect that the outside gate was closed at the time of the injury, and that the boys swinging upon the inside gate went into the stock yards by climbing over an outside gate. The evidence of Johnnie Young, a little boy about eight years old, who was with Er[288]*288nest Bockoven swinging on the inside gate at the time it fell, introduced to prove that the outside gate was open on the morning of the injury, is very unsatisfactory. He testified “ that he and Earnest went into the stock yards when the outside gate was opened; that they walked right through the gate.” Upon cross-examination, he testified ‘‘that they climbed over the gate going in; that he climbed over the fence of the stock yards going out,” and that he told Harding, the depot agent, “that the outside gate was closed.” Upon reexamination he said “ he went into the gate, and then climbed up on the fence.” Harding testified that Young told him “he didn’t go in the gate because it was closed.” There was no finding of the jury that children, with the knowledge of the company, were in the habit of climbing over the outside gate or inclosuré of the stock yards for the purpose of playing or swinging upon the inside gate or fence. Evidence was offered to show that the outside gate was usually left open. When objection was made to the introduction of this evidence, the. counsel for plaintiff below stated “that the' object was to prove negligence in leaving the outside gate open and the inside gates in the condition they were.” This evidence was admitted, and was then attempted to be followed up by the further evidence of Johnnie Young, that the gate was open on the morning the little boy was killed, and that the boys went into the stock yards through the open gate.
1. Dangerous premises— injury to child-liability.
[289]*2892 Railroad Sigence-■when nabie. [288]*288We are not willing to extend the rule declared by this court in the Fitzsimmons and Dunden cases. In some of the courts, the rule in those cases has been questioned, and in others denied. We think if the stock yards within which the little boy was killed had a sufficient fence or inclosure around them, with safe and secure outside gates, and the boys reached the inside gate, which subsequently fell, by climbing over the outside gate, or any other part of the inclosure, there would be no liability upon the part of the railroad company. If, with the consent or knowledge of the railroad company, children frequently climbed over the outside gate or inclosure of the stock yards, [289]*289and played or swung upon the inside gate, in a defective and dangerous condition, under certain circumstances, such negligence might be established as to create a liability f°r any injury resulting to such children from a ga^e knowingly left in a dangerous condition. If the outside gate was generally left open, in consequence of which children frequently went inside of the yards and played ©r swung on the defective inside gate, and all of this was with the consent or knowledge of the company, and if on the morning that the little boy was killed, the outside gate was open, and the boys entered the yards through the open gate, a liability might rest upon the company, if the parents were not negligent in suffering the boy to be exposed to such danger. If the railroad company had knowledge that little children frequently played in the vicinity or around the stock yards, and if the outside gate was open upon the morning of the injury, without the authority of the railroad company, the question might arise whether, after being opened, it was negligently permitted to remain open.
An open door or gate to an inclosure or other premises where children frequently play would be very apt to excite their curiosity, and is something in the way of a permission or an invitation to enter such inclosure or premises, and a little boy in going through an open gate or door around which he is playing would be indulging in the natural instinct of a child. On the other hand, an inclosure with safe and secure gates which are closed is a bar or prohibition for anyone to enter within. It does not appear from the evidence that little children could open the outside gate of the stock yards when closed or shut. Where an action for a negligent injury to an infant is brought by the parent, it is very justly held that the contributory negligence of such parent may be shown in bar, (Beach, Contrib. Neg., 2d ed., § 131,) but it is otherwise if the action is brought by the infant or by a next friend for the benefit of the infant. (4 Am. Law Rev. 405, and cases cited.)
The jury were asked, “At the time of the injury, were the [290]*290outside gates of the yards found to be open or closed ? ” The answer was, “Children entered and closed it.” This was not a direct answer. It was evasive. There was testimony bearing directly upon the question submitted, and it should have been answered fairly by the jury. As we view the case, it was important to determine in what manner the boys reached the inside gate which fell. Upon the findings of the jury, if the stock yards were properly inclosed, and the outside gate sufficiently safe and secure when the boys entered the yards, there was no negligence on the part of the company to render it liable. If it were proved that on one occasion only, prior to the injury, children were in the stock yards and were ordered away at once by the company or its agent, and under such direction left the yards, that of itself would not establish knowledge on the part of the company of any habit or practice of children resorting to the yards for play. We differ with counsel in the assertion that it is immaterial whether the gates of the fence or inclosure were shut or not, when the boys entered the yards, unless, with the knowledge and consent of the railroad company, children frequently climbed over thejoutside gate or inclosure to play or swing upon the inside gate. An examination of the numerous cases referred to in the brief to sustain the judgment, with the exception of the injuries committed intentionally by traps or spring guns, which are not applicable, shows that the dangerous machines or places complained of were uninclosed and semipublic, or were reached through doors or gates left open, or were on public highways or passways, which the public were permitted to use.
Among the special findings of the jury were the following :
“ Ques. What do you estimate the value of the service of this injured child from the time of death to the age of 21 years? Ans. We allow for the child as a whole.
“Q. What do you allow for his care and maintenance during such period? A. For maintenance we-made no allowance.”
The damages were assessed by the jury at $8,000. Where [291]*291the death of one is caused by the wrongful act or omission of another, the statute provides that the damages cannot exceed $10,000. (Civil Code, §422.) If the railroad company causes, by its wrongful act or omission, the death of an adult, leaving a widow and children, only $10,000 could be recovered for the benefit of the family. Considering this provision of the statute, the age of the little boy who was killed,, and the special findings of the jury, the verdict is excessive. All of the probable or possible pecuniary benefits from the continued life of the boy until he should reach his majority seem to have been allowed, but none of the burdens for his-support during his tender years seem to have been deducted or considered.
The request that this court give the plaintiff below the-option to remit any excessive damages and allow judgment to-be taken for the residue cannot be granted, because, until the case is properly tried and the issues fairly decided, the court cannot say, as a matter of law, upon the conflicting evidence, that the plaintiff below is entitled to recover.
The judgment of the district court will be reversed.
All the Justices concurring.