
    Kucia, Admr., v. The National Tube Co.
    
      Negligence — Attractive nuisance and enticement inapplicable— Child, falling through insecure guard rail to bridge, drowned in stream — Condition of guard rail not perceptible or known to owner — Child a mere licensee, not an invitee —Verdict directed after opening statement of counsel.
    
    
      A company had some land which it permitted its employes to use for gardening purposes; on said land it had constructed a bridge, with a guard rail over a cut-over channel of Black river; there was a roadway, entirely upon the company’s property, leading to said bridge; with the knowledge of said company, children were in the habit of playing on said premises in the vicinity of said bridge, and of crossing and re-crossing, and playing on said bridge; on a certain day a child seven years of age was playing on said bridge and leaned against said guard rail, and by reason of the guard rail being rotten and insecure and out of repair, which condition was not perceptible to people generally, said child fell into the stream and was drowned; no claim was made that the company knew that said guard rail was out of repair, nor was any claim made that the child was a member of a family having a garden upon said property, or that the child’s being there had any connection whatever with the use of said premises, or that the child went upon said premises because of the inducement, allurement, or enticement of the company, or that the statical condition of the premises was" made perilous by any active and negligent operation of the company. Held: That these facts do not establish any legal duty which the company owed said child and which the company failed to discharge, and that, therefore, no actionable negligence was shown.
    (Decided October 10, 1925.)
    Error : Court of Appeals for Lorain county.
    
      Mr. John M. Pindras, and Mr. Harry M. Redington, for plaintiff in error.
    
      
      Mr. E. C. Johnson and Messrs. Squire, Sanders & Dempsey, for defendant in error.
   Washburn, J.

The plaintiff in this court and in the court below sued to recover damages for the wrongful death of a boy seven years old, a jury was impaneled, and, after the opening statement of counsel for plaintiff, the trial court, on motion of the defendant, directed a verdict for the defendant.

A motion for a new trial was filed and overruled and judgment entered for the defendant. This ruling of the trial court is attacked in this proceeding; the claim being that, giving to the statement of counsel for plaintiff the most favorable interpretation it will reasonably warrant, facts were stated which required the court to submit the case to the jury.

It is settled in Ohio that “a motion by the defendant to arrest a cause from the jury and enter a judgment of dismissal of plaintiff’s petition and for costs, made after the opening statement of counsel for the plaintiff and before the introduction of any evidence, is an admission by the defendant, for the purpose of the motion, of the truth of all the statements that the plaintiff proposes to establish by the evidence, leaving no disputed question of fact to be determined by the jury; the only remaining question being one of law for the court.” Cornell v. Morrison, 87 Ohio St., 215, 100 N. E., 817.

And also that “in order that an issue should be required to be submitted to the jury it is not essential that there be such a conflict in the testimony of different witnesses as makes it necessary for the jury to determine disputes or questions of veracity. That is not the only province of the jury. They have another important function and duty. Where there is no dispute or conflict in the testimony of different witnesses, but, nevertheless, the unconflicting testimony discloses a variety of circumstances from which different minds' may reasonably arrive at different1 conclusions as to the ultimate fact shown by such evidence, then it is the duty of the jury to determine such ultimate fact, even though the trial judge should himself be convinced as to what the conclusion should be. Of course, when the ultimate fact is undisputed there is presented simply a question of law. Hickman v. Ohio State Life Ins. Co., 92 Ohio St., 87, at page 95, 110 N. E., 542, 544.

The determining question in the case at bar is whether or not the facts which counsel stated he proposed to prove, and all reasonable inferences to be. drawn therefrom, when given an interpretation most favorable to the plaintiff, warranted the conclusion that the defendant owed a duty to the plaintiff’s decedent and was negligent in the performance of that duty.

By the statement of counsel we learn that the defendant had some land which it permitted its employes to use for gardening purposes, and that on said land it had constructed a bridge, with a guard rail over a cut-over channel of Black river; that there was a roadway, entirely upon defendant’s property, leading to said bridge; that children were in the habit of playing on said premises of the defendant in the vicinity of said bridge, and of crossing and recrossing and playing upon said bridge; that the decedent on April 7, 1923, was playing on said bridge and leaned against said guard rail and that by reason of the guard rail being rotten and insecure and out of repair, which condition was not perceptible to people generally, and, of course, not to children, the decedent fell into the stream and was drowned; that the defendant knew that the children of the neighborhood played upon said premises and frequently used said bridge.

The statement did not include a claim that the defendant knew that said guard rail wate out of repair, or that said decedent was a member of a family having a garden upon said property, or that his being there had any connection whatever with the use of said premises, or that he went upon said premises because' of the inducement, allurement, or enticement of the defendant. Nor was there any suggestion that the statical condition of the premises was made perilous by any action and negligent operation of the defendant.

Under these circumstances we are of the opinion that the rule of liability announced in Railroad Co. v. Harvey, 77 Ohio St., 235, 83 N. E., 66, 19 L. R. A., (N. S.), 1136, 122 Am. St. Rep., 503, 11 Ann. Cas., 981, and in Hannan, Adm’r., v. Ehrlich, 102 Ohio St., 176, 131 N. E., 504, is applicable and controlling:

“(3) Actionable negligence exists only where the one whose act causes or occasions the injury owes to the injured person a duty created either by contract or by operation of law which he has failed to discharge.” Hannan, Adm’r., v. Ehrlich, supra.
“(1) It is not the duty of an occupier of land to exercise care to make it safe for infant children who. come upon it without invitation but merely by sufferance.” Railroad Co. v. Harvey, supra.

The decedent, if not a trespasser, was at best a mere licensee, and not an invited person.

‘ ‘ (4) A licensee takes his license subject to its attendant perils and risks, and the licensor owes him no duty except to refrain from wantonly or willfully injuring him and to exercise ordinary care after discovering him to be in peril; he should not be exposed to hidden daingers, pitfalls, or obstructions.
“(5) The foregoing rule is not altered by the fact that the injured person is a child of tender years.” Hannan, Adm’r., v. Ehrlich, supra.
‘ ‘ A railway company having constructed its station and a platform incident thereto does not, by permitting persons to use such platform for purposes of their own not connected with the transaction of business at such station, become charged with a duty to reconstruct, guard, or light such platform so as to render it safe for the' permitted use.” C., H. & D. Rd. Co. v. Aller, 64 Ohio St., 183, 60 N. E., 205.

The fact that the defendant did not know of the weak condition of said guard rail, and was not guilty of any active and negligent operation which caused the injury, distinguishes the case at bar from cases cited by plaintiff in error.

The trial court was right in deciding that the facts stated by counsel, liberally construed and presumed to be true, did not establish any legal duty which the defendant owed the decedent and which defendant failed to discharge, and, therefore, that no actionable negligence was shown.

Judgment affirmed.

Pardee, P. J., and Funk, J., concur:  