
    IMPLIED INVITATION TO CHILDREN TO PLAY BESIDE A RAILWAY SIDE TRACK.
    [Montgomery County Court of Common Pleas],
    Harold Debolt’s Guardian v. The Cincinnati, Hamilton & Dayton Railway.
    Decided June 1, 1903.
    
      Negligence — Open Railway Yard — Duty of Company Toward Children Playing Along Side Track.
    
    A petition alleging that sand was left by the defendant railway company along side of unprotected tracks, running parallel with a strip of ground owned by the company, and long used as a street or lane; that children were in the habit of playing on this strip of ground and in the sand, of which the defendant had knowledge; that a cut of cars was kicked upon this track, without warning to hoys playing in the sand, and without any one upon the cars to check or regulate their speed; and that these cars humped into another car which ran upon and permanently injured one of the hoys, is not demurrable.
   Brown, J.

This ease comes before the court on demurrer to the amended petition.

After alleging his appointment as guardian of the estate of Harold Debolt and the character of the defendant, plaintiff avers that defendant “maintains a freight depot on Webster street in said city and maintains in connection therewith numerous side •tracks for the purpose of handling the traffic of said railroad. Plaintiff further alleges that Webster, Second, Toledo, Fulton and Shank streets are public streets of the city of Dayton, Ohio; that Webster street runs almost north and south and intersects Second at right angles. Toledo is a short street' running from Webster street east about 200 feet to Fulton street and lying immediately next to and north of said freight depot and about 250 feet south of Second street, to which it is parallel. Fulton street is a short street, running from Second street to Toledo street, parallel with and about 200 feet east of Webster street. Shank is a short street lying about 200 feet east of Fulton street' and parallel thereto, running from Second street south to a street or lane unnamed, the property of said defendant. That said street or lane is about 30 feet wide and about' 200 feet long and connects Toledo street with Shank street. Said lane has been used by the public in general for many years as a public road, with the knowledge and acquiescence of s'aid railway company; that running along the south side of this lane from Toledo street east and without any obstruction between them is an open side track established and used by said company in connection with its business.”

Plaintiff alleges that the property bounded by Webster street on the west, Shank street on the east, Second street' on the north and Toledo street and the.land above mentioned on the south, is the property of the said railroad company, and is built up with dwelling houses inhabited by numerous families; that the said dwelling houses are on small lots and built close together, so that the children living in them have for years used said Toledo, Fulton, and Shank streets and the lane above described, as play-grounds; all of which said defendant company well knew before and at the time of the grievance hereinafter mentioned.

Plaintiff avers that the said Harold Debolt on the 22d day of February, 1902, lived with his father in a three-roomed cottage on the aforesaid lane between Shank street and Fulton street, and the entrance to his home, which is the property of said defendant, is on S'aid lane at the alley between Fulton and Shank streets.

Plaintiff avers that a few days prior to the 22d day of February, 1902, the date of the grievance hereinafter set forth, there had been unloaded on the track aforementioned, at a point opposite the house of said Harold Debolt, several car loads of white sand, and that as a result of unloading said cars considerable of said sand was spilt and accumulated on the side of said track next to said lane.

He avers that on the afternoon of February 22d, 1902, at about 4:30 o’clock, the said Harold Debolt, in company with another boy, was attracted by the sand to the side of said track. He avers that at that time there were several cars on said track, the last one being at a point opposite the sand where the boys sat playing. He avers that the balance of said track was unoccupied. He says that at that time one of the switch engines of said company was switching in the yards of said defendant, which contained numerous other side tracks; but that said switch engine could not be seen from the point where the boys were on account of other cars on other tracks. He alleges that while said Harold Debolt was so engaged in playing along the side of said track, the agent of said company in charge of said switch engine caused a cut of several cars to be kicked into the side track 'along which the said boys were playing, as aforementioned, without any one being on said cut of cars to be on the lookout or to regulate or reduce the speed thereof, and without having any of its agents in a position where he could view said side track and give warning of danger, and without having first looked to see if there was any one in danger. He alleges that as a result of said action of defendant’s agents, that, said cut of cars bumped with great force against the cars that were already on said track as aforementioned; that the shock was so sudden and without warning that the boys, playing as aforesaid, were greatly startled; that the car along side of which the boys were playing was bumped west along said track so suddenly and forcibly that the said Harold Debolt in attempting to get away from his perilous position 'and to prevent the axle boxes of said car from striking him, got his right foot on the north rail of said track so that the car, so impelled as aforesaid, ran over the said foot, mashing it, and so that his left foot was also partially caught and severely injured. He avers that as a result of said injury the right leg of said Harold Debolt was of necessity amputated between the ankle and knee, and that his left foot was so severely injured that he was for a long while unable to use same, and that he has not yet entirely recovered its proper use; that the said Harold Debolt lay in the hospital for. two months suffering great pain and anguish.

Plaintiff says that the said boys, playing in the sand as aforesaid, were in a position so that they could have been easily seen by the employes of said defendant by the exercise of reasonable care and prudence. And asking damages in the sum of $20,000.

In brief, the question presented may be stated as follows: Is a railroad company liable for personal injuries to a child seven years of age (whom, with other children, it knowingly permits to play along side of its tracks for a period of time), sustained by being run onto by a cut of cars which the company has kicked into the track, along which the children were playing, without warning, without any one in charge thereof, and without the employes of the company looking to see whether the children are in danger ?

Numerous cases from other states have been cited by counsel in support of their contentions. These serve to show the hopeless conflict of judicial opinion on the subject. Let us examine some of the cases cited by defendant.

Morrissey v. Eastern R. R. Co., 126 Mass., 377, is a leading case on the question. The court there holds: “A railroad corporation is not liable for running over 'a child who is using the track of the corporation as a play-ground, if the act is mot done maliciously or with gross and reckless carelessness.” Tire facts differ from the case at bar in that it was not claimed that the railroad company had knowledge of the child’s presence on or along the track, and as the court says, there was nothing to induce him to enter thereon.

In Baltimore & Ohio R. R. Co. v. Schwindling, 101 Pa. St., 258, the defendant in error, a boy between five and six years of age, went for his own amusement solely, upon the open platform of a railroad station and took his stand upon the edge thereof in order to observe an approaching train. As the train came up it ran alongside the platform at the rate of three or four miles an hour, and an iron stirrup or step which was bent and projected outward some few inches from the car, caught the boy and knocked him under the wheels, inflicting some injuries. It was held that there was no negligence on the part of the company.

In O’Connor v. Illinois Central R. R. Co., 44 La. Ann., 339, damages were sought for injuries to a child sustained in defendant’s yards, while the child with his playmates was playing on a coal dump. The children got into the yards through holes in a high board fence which the company had erected to keep them out. Watchmen were also employed for the same purpose. The court held that the company had taken reasonable precautions to avoid such injuries and could not be held liable.

In Collins v. R. R. Co., 71 Hun., 504 (78 S. Ct., N. Y.), a boy nine years of age was struck and killed while running across the defendant’s trades on the private right of way. The boy had been working for parties occupying a circus advertising car, standing on a “dead” or branch track, between two passenger tracks. He started from the platform of the circus car, whence he had a view of an approaching train, 'and attempted to run across the tracks on which a train was approaching at the rate of thirty-five miles or more an hour. The question of contributory negligence was left to the jury and on the point of the defendant’s negligence the court held he was a trespasser and the company owed him no duty except not to wantonly or maliciously run him down.

That these cases are distinguishable from the case at bar is apparent.

The court has investigated the question somewhat, and desires to call the attention of counsel to several cases which it believes throw more light on the issue.

The Court of Appeals, in the case of Kentucky Central R. R. Co. v. Gastman's Adm’r., 83 Ky., 119, say on page 27:

“Of course we do not mean by this to say that a railroad company is an insurer against accidents to children, and that it is liable for injuries to them which cannot well be foreseen; but if they are of such tender years as to be devoid of discretion, then justice and the dictates of humanity require the exercise of reasonable care to prevent their being placed in danger, even though they may be, technically, trespassers; and this would be lacking if the employes of a company were to switch their trains, knowing that a child of such tender years as to have no discretion was in the immediate vicinity of them.”

The authorities upon the question are collected and commented on in Harriman v. Railway Company, 45 O. S., 11. In that case a child was injured by the explosion of a torpedo which had been picked up by a companion while on defendant’s track, at a point' other than a crossing, but where children were in the' habit of passing to the knowledge of t'he defendant. On page 36, the judge (Williams), quoting from Thompson on Negligence, says:

“It is a reasonable and necessary rule, that a higher degree of care should be exercised towa-rd a child incapable of using discretion commensurate with the perils of his situation, than one of mature age and capacity. Hence, conduct which toward the general public might be up to the standard of due care, may be gross or willful negligence where considered in reference to children of tender age and immature experience. 'While, therefore, the owner of lands is not bound to provide against remote or improbable injury to children trespassing thereon, there is a class of cases which hold owners liable for injuries to children, ‘although trespassing at the time, when from the peculiar nature and open and exposed position of the dangerous defect the owner or agent should reasonably anticipate such injury to flow therefrom as actually happened.”

And again, quoting from Judge Cooley, (p. 27) :

“The moving about of the children upon the land where they were at liberty to go, while they were not actually employed, was as much an incident to their being there, as is the loitering or playing of children outside the traveled part of the highway, as they go upon it to school or errands. Children, wherever they go, must be expected to act upon childish instincts and impulses; and others, who are chargeable with a duty of care and caution towards them, must calculate upon this and take.precautions accordingly. If they have exposed to the observation of children anything which would be tempting to them, and who, in their immature judgment, might naturally suppose they were at liberty to handle or play with, they should expect that liberty to be taken.”

Again on page 28:

“The railroad track of the defendant, so open and exposed ab to be subject to the habitual and daily use of the public, including children, to the knowledge of the defendant and with its permission, was quite as inviting to children, and likely to tempt them to wander and play upon it', as an inclosed shed (the Michigan case) ; and a torpedo lying exposed upon the track is no less attractive to them than one in a partially covered box.”

Again on page 30:

“In the late case of Heaven v. Pender, 11 Q. B. D., 503, it is said that a more accurate and satisfactory ground of recovery, embracing all cases of implied invitation, is to be found in the proposition, that wherever one person is by circumstances placed in such a position with regard to another, that every one of ordinary prudence would recognize, that if he did not use ordinary care and skill in his own conduct’ with regard to these circumstances, he might cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger. However this may be, the phrase, ‘implied invitation/ in its real value and significance, as derived from its application from the adjudged cases, imports knowledge by the defendant of the probable use by the plaintiff of the defendant’s property, so situated and conditioned as to be open to and likely to be subjected to such use; and it may be concluded that, while mere permission is not invitation, it may be implied, from acquiescence of the owner in the accustomed use of his property by the public, so long in the same condition, that it might reasonably be expected such use would be allowed by him to continue; or when he knowingly so exposes and leaves it to the use of children, without objection, that they following their natural impulses would be likely to go upon it; and in either case it is his duty to use such care, commensurate with the danger arising from such use, as an ordinarily prudent person would under the circumstances. Hence, where a railroad company has for a long time permitted the public, including children, to retravel and pass habitually over its road at a given point without objection or hindrance, it should in the operation of trains, ¡and management of its road, so long as it acquiesces in such use, be held to anticipate the continuance thereof, and is bound to exercise care accordingly, having due regard to such probable use, and proportioned to the probable damages to persons so using its road; and it is negligence for the servants of such company to knowingly interpose any new danger without reasonable precaution against injury therefrom.
“It is therefore unimportant whether the defendant’s liability, so far as the question of negligence is concerned, be placed upon the ground of implied invitation, or be referred to that other, and as it is said, more satisfactory and accurate statement of the rule announced in Heaven v. Pender. Tested by either, the defendant knowing of the public use of its roadway by children, from the previous habitual use «thereof by the public, long 'acquiesced in by the defendant, ought reasonably to have anticipated such use by the plaintiff and other children.”

And again it is said on page 35:

“The test is to be found in the probable injurious consequences which were to be anticipated, not in the number of subsequent events and agencies which might arise.”

In Ann Arbor Railroad Co. v. Kinz, 22 C. C., 227, it was held:

“Where boys were in the habit of going upon land belonging to a railroad company, with the knowledge of the company, for the purpose of playing, and one of them was injured by the falling of a bank, in which an excavation had been made by the company, leaving an overhanging portion of the bank, the company is liable for such injuries, whether the injured boy was a licensee or a trespasser.”

This case went to the Supreme Court and was reversed (Ohio Law Bull., No. 18, Vol. 48, issue of May 4, 1903) because the condition of the embankment did not, to the knowledge of the company, indicate a reasonable probability of such result. This we take to be the better rule.

Applying these principles as announced by the Supreme Court of our state, what must our conclusion be?

The petition avers that the track at the place of the accident is open and unprotected; that paralleling the track is the strip of land, the property of the defendant, which has long been used as a street or lane; that children of the community were in the habit of playing on that strip of land; that the defendant' had knowledge of these facts; that a few days before the accident sand was unloaded from cars at the point of the accident and that a quantity thereof fell along the tracks, accumulating into a pile; that while the boys were playing in this sand the defendants kicked a cut of ears along the track without any one upon them to check or regulate their speed, and without any warning or notice to the boys, although they could easily have been seen; that the car bumped forcibly against other ears on the siding; that the boys becoming alarmed and excited tried t'o get away from the track, but while so doing Harold Debolt got his foot on the track and was injured.

The court is of the opinion that the agents of the -company, knowing the facts as alleged, should have taken some precautions to avoid injury to children whom they might reasonably expect upon their property. Children act upon childish instincts and impulses and the trainmen should have taken measures to guard against injuring them.

The Superior Court of Cincinnati, at General Term, 1898, reversing the decision of the Special Term (7 N. P., 600, Ficker v. R. R. Co.), held in a similar case:

(1) “When a railroad company permits children to go on a vacant strip, along its track in a city, it cannot be said as a matter of law that the running of a car silently along the track, without giving warning to children who may happen to be upon the track, is an exercise of ordinary care under the circumstances.
(2) “Children of five years have but little if any discretion, and act upon childish instincts.”

The evidence in that ease disclosed that there were three tracks of the railroad company running parallel with t'he company’s freight house south of Pearl street, from Central avenue to Smith street. Between the north B. & O. Southwestern track and the south track of defendant' there is a space of about twenty-two feet, measuring from Central avenue to Smith street. The entrances to this space were not fenced or guarded in any way, and persons of all kinds, including children, went upon it at will without protest from the defendant.

On t'he Sunday morning of the accident the child was walking along this way with a number of companions, when, attracted by something on the track or beyond it, it stepped upon one of the tracks of the defendant and before it could get back was run over by a freight car which was moving along the track. The car gave no warning of any kind of it's 'approach, although there was a brakeman in charge of it.

It was held in that case that the question of defendant’s negligence should have been submitted to the jury.

Under these decisions the court is of the opinion that the demurrer should be overruled.  