
    NEGLIGENCE IN MAINTAINING A TURN-TABLE.
    [Circuit Court of Portage County.]
    The Wheeling & Lake Erie Railroad Company v. Carl Harvey, By His Next Friend.
    Decided, September Term, 1905.
    
      Railways — Turn-table near Traveled Path — Child Hurt in Plpying upon It — Contrary Holdings of the Courts — As to Duty of Land Owner Totoard Trespassers — Reasonable Precautions for Protection of Children.
    
    Where a railroad company maintains a turn-t'able upon its right of way, close to a traveled path along its track, which people, old and young, have been accustomed to use, without objection for many years as a traveled way, and further permits children to play upon such turn-table, without objection — Held: That it is its duty to guard such turn-table, or so securely fasten it that children of tender years will not be injured while playing upon it.
    From the memorandum of authorities submitted by Squire, Sanders & Dempsey, for plaintiff in error.
    The so-called “turn-table doctrine” has never been adopted in Ohio'. Reference to the turn-table eases in Harriman v. Railway, 45 O. S., 11, is mere dictum. See the explanation of the ITarriman ease in the following cases: Railroad Company v. Aller, 64 O. S., 183; Railroad Company v. Cox, Admr., 66 O. S., 276; Railway Co. v. Workman, 66 O. S., 509, pp. 540, 541.
    Recent decisions of the Supreme Court are inconsistent with the turn-table doctrine, which was applicable to these cases if in force in Ohio: Railroad Company v. Kinz, 68 O. S., 210; Railway Company v. Liidke, 69 O. S., 384.
    Unless a different rule is to be applied in Ohio toward children than toward adults, the following cases prevent recovery in the present: Railway Company v. Bingham, 26 O. S., 364; Railroad Company v. Aller, supra.
    
    The original turn-table case (Railroad v. Stout, 84 U. S. [17 Wall.], 657), assumes the question at issue, and is an extension of cases since overruled. Railroad Company v. Kinz, supra.
    
    The weight of authority is opposed to the turn-table doctrine: Frost v. Railroad Co., 64 N. H., 220; Daniels v. Railroad Co., 154 Mass., 349; Holbrook v. Aldrick, 168 Mass., 15; 36 L. R. A., 493; McAlpin v. Powell, 70 N. Y., 126; Walsh v. Railroad, 145 N. Y., 301; Gillespie v. McGowen, 100 Pa., 144; Rogers v. Lees, 140 Pa., 475; Paolino v. McKendall, 24 R. I., 432; Turess v. Railroad, 61 N. J. L., 314; Railroad v. Raich, 61 N. J. L., 635; 41 L. R. A., 231; Retz v. Wheeling, 45 W. Va., 270; 43 L. R. A., 148; Uthermohlen v. Boogs Run Co 50 W. Va., 257; O’Connor v. Railroad Co., 45 La. Ann., 339; Catlett v. Railroad Co., 57 Ark., 461; Indianapolis v. Emmelman, 108 Ind., 530; Patterson v. Borough of Woohkahra, 16 New South Wales, L. R. Cases at Law, 229.
    In the following states the turn-table doctrine has been in force but is now repudiated:' Ryan v. Towar, 128 Mich., 463; 55 L. R. A., 310; Railway v. Beavers, 113 Ga., 298; Nolan v. Railway Co., 53 Conn., 461; Dobbins v. Railroad Co., 91 Tex., 60; 38 L. R. A., 573.
    Those states applying the turn-table doctrine do* not carry it as far as the present ease, as the turn-table here was fastened, and the requests to charge based upion the following cases should have been given: Railroad Company v. Bell, 81 Ill., 76; Kolste v. Railroad Co., 32 Minn., 133; Bates v. Railroad Company, 90 Tenn., 36.
    The plaintiff was not attracted onto the premises of the railroad company by the turn-table, and the turn-table doctrine does not apply: Jefferson v. B. R. E. Co. (Alabama, 1887), 38 L. R. A., 458; Elliott on Railroads, Vol. 3, No. 1259.
    Brief of W. J. Beekley on behalf of defendant in error.
    On behalf of plaintiff it is claimed that the within case is what is denominated in the books a “turn-table” case, and in nearly every aspect corresponds with the material facts found in a large number of eases decided in the various states.
    Carl IParvey, at time of injury, was less than six years of age, and therefore could not be said to be guilty of contributory negligence.
    
      While the turn-table was not located' in a thickly settled neighborhood, yet it was within the corporate limits of the village of Kent, and residences were within a few ¡hundred feet of the same, and was located also midway between two streets of said village, which were much used for travel, and the tracks of defendant company between the two streets had for years been used as a passage-way for pedestrians.
    The turn-table was not locked, and the fastening was so slight that, as shown in the evidence, children of tender years had lifted the same, and set the turn-table in motion.
    The evidence discloses not only that from the situation the company ought to have anticipated that children would be attracted to 'the turn-table and play thereon, but actual knowledge of the company of the repeated custom of children moving and playing upon said turn-table was proven.
    We have, therefore, all t'he necessary ingredients of liability in the above line of cases, sometimes denominated “dangerous and attractive nuisances,” namely, a machine peculiarly attractive to children, and latently dangerous to- those who might be attracted thither for the purpose of play; located where the owner should have anticipated that children would be attracted thereto; actual knowledge that they were wont to play thereon ; insecurely fastened; and no reason whatsoever given by defendant company why the same could not have been safely and securely locked and not materially interfere with its beneficial use thereof.
    The first and leading ease establishing the liability in such cases is what is commonly denominated the “Stout” case, and which was once tried before the noted jurist, Judge Dillon, who delivered the charge to the jury. Sioux City & P. R. Co. v. Stout, 17 Wall. (U. S.), 657, followed and approved in Ry. Co. v. McDonald, 152 U. S., 262; Alabama G. S. R. Co. v. Crocker (Ala.), Vol. 31, S. Rep., 561; Chicago, B. & O. R. Co. v. Krangenbuhl (Supreme Court of Neb., decided October 9, 1902), 91 N. W. Rep., 880; Edington v. Burlington, C. R. & N. Ry. Co. (Supreme Court of Iowa, April 12, 1902), Vol. 90, N. W. Rep., 95; Harriman v. Ry. Co., 45 O. S., 11, especially page 28; Ry. Co. v. Shields, 47 O. S., 387; Ann Arbor R. Co. v. Kinz, 68 O. S., 226-227 ; L. S. & M. S. Ry. Co. v. Duer, Gdn., 11 C. D., 761; 91 Cal., 296 (25 Am. St. R., 186); 92 Cal., 89 (28 Pac. Rep., 104); Keefe v. Mil. R. R. Co., 21 Minn., 207 (18 A. Rep., 393); Kan. R. R. Co. v. Fitzsimons, 22 Kan., 686 (31 Am. Rep., 203, and notes therein cited): East Tennessee & W. N. C. R. R. Co. v. Cargille (decided by the Supreme Court of Tennessee, November, 1900), found in Vol. 9, Am. Neg. Rep., 200; Koons v. St. Louis R. R. Co., 65 Mo., 592; Nagel v. R. R. Co., 75 Mo., 652 (42 Am. Rep., 418); Ilwaco R. Co. v. Hedrick, 1 Wash., 446 (22 Am. St. Rep., 169); McMahon v. Pekin, 154 Ill., 141, see especially page 149; Ferguson v. Columbus Ry. Co., 75 Ga., 637; Ferguson v. Columbus Ry. Co., 77 Ga., 102; Central Law Journal, Vol. 42, page 457.
    Cook, J.; Burrows, J., and Laubie, J., concur.
    Error to the Court of Common Plea» of Portage County.
   Carl Harvey, a boy six years of age, was injured by having his left leg crushed, necessitating its amputation close to the thigh joint, on the 2d day of July, 1904, while he was riding upon the turn-table of the Wheeling & Lake Erie Railroad Company situated upon its premises in the village of Kent, this county. There is very little dispute, if any, about the facts, and the question presented is: Was the jury justified in inferring negligence, from the facts in the ease ?

The evidence shows that the- turn-table was situated close to the main track on the right of way of the company, in the village of Kent; it is true, not in its most populous section, but in a place where there were a number of dwellings, upon two streets close to the turn-table. The tracks -of the company ran north and south at the place of the injury, ¡and numerous persons, adults and children, without objection from the company, were •accustomed for -a number of years to use a side path along the main track, in going to and fro between these two streets, as well as from other parts of the village. The evidence further shows that children, for some time, at least four or five years, had been accustomed to play upon the turn-table, with the knowledge of the subordinate employes of the company; when they were turning the turn-table these employes would object, and drive them away; when running over it, playing upon it only, they would not disturb them.

The turn-table was -not locked, or otherwise securely fastened. It 'had a piece of iron known -as a brake shoe, four inches wide by sixteen inches long, fitted down into a groove, one end placed upon the end of the turn-table, and the other upon a tie at the end of the switch intersecting the turn-table. This piece of iron weighed about ten to fifteen pounds, and could be easily removed by any one who conld lift it. Sometimes this break shoe was in place, hut frequently not in place, the turn-table swinging in the wind or by its own motion.

The day the boy was injured, he, with two other boys of larger size, went down the track, along the path for the purpose of getting a small piece of iron; in coming hack, and passing, the turn-table for the second time, one of the boys suggested that they have a ride on the turn-table, which was unfastened by one of the larger boys lifting out the 'break shoe. The plaintiff got upon the turn-table, and the two larger hoys pushed the turntable around to give him a ride, when his leg got between the end of the turn-table iand the abutment of the switch, and he was injured ás stated.

Under these facts, is the company liable? No amount of discussion would help to elucidate or settle the question as it has been gone over in nearly every state of the Union, and the holdings are directly contrary to each other.

Two principles are set forth and maintained in these directly opposite decisions. The first is: That an owner of land may use it in such, manner as he sees fit; and if a trespasser or mere licensee, although a child of immature years, is injured, he can not complain, for the reason that, if the owner had used it more carefully, no injury would have resulted, and that in the ease of turn-tables, erected and maintained upon the company’s land, although in a public place, or in a place where children are in a habit of congregating to play upon the turn-table, is not an invitation or inducement held out to the child to come upon the premises of the company ?

This rule has the support of many eminent courts and jurists in a large number of states: Haunsell v. Smith, 7 C. B. W. S., 731; Clark v. Manchester, 62 N. H., 577; Klix v. Memon, 68 Wis., 271; Gramlich v. Wurst, 86 Penn. St., 74; Conley v. Pittsburg, Cincinnati & St. Louis Ry. Co., 95 Penn. St., 398; Gillespie v. McGowen, 100 Penn., 144; Hargarve v. Deacon, 25 Mich., 1; Sweeny v. Old Colony & New Port Ry. Co., 10 Allen, 368; Metcalk v. Cunand Steamship Company, 147 Mass., 66; Barstow v. Old Colony Ry., 143 Mass., 535; Daniels v. N. Y. & N. E. R. R. Co., 154 Mass., 439; Frost v. Eastern Ry. Co., 64 N. H., 220; Walsh v. Fitchburg R. R. Co., 145 N. Y., 301; D., L. & W. R. R. Co. v. Reich, 61 N. J. Law, 635.

•The last ease referred to places the rule in its strongest light, the syllabus being as follows:

"1. The plaintiff, ;a young child, was injured while upon a turn-table of the defendant company. The turn-table was located upon the private property of the defendant, near to a public street, and was entirely unprotected and unguarded. Children of all ages frequently congregated upon the defendant’s premises, to play upon the turn-table. Held: That there was no liability on the part of the railroad company, to answer for the plaintiff’s injury.
“2. The land owner is ordinarily under no obligations to a mere licensee or to a trespasser, to keep his premises in a safe condition; and the fact that the licensee or the trespasser is an infant of tender years affords nO' reason for modifying this rule, and’ charging the land owner with a duty which .does not otherwise exist.
“3. When an owner of land erects upon ¡his premises for their more beneficial use, -a structure which happens to be attractive to children, he does not, by such action, extend an invitation to children to enter thereon. ’ ’

This doctrine a large number of the courts of last resort of the different states, as well as the Supreme Court of the United States, repudiate. The decisions are collated in American & English Encyclopedia of Law, Volume 29, page 33.

As deduced from these decisions, the rule as there laid down, is that the owner of dangerous machinery or appliances that are attractive to children of tender years can not permit such machinery -or appliances, to remain in a public place, where children are liable to be attracted thereby, get upon the same and be injured; or even upon his own premises, when the place is not public, if he has reason to anticipate that such children 'will get upon the same, without taking proper and reasonable precaution to so protect or fasten such machinery or appliance, that children will not be injured by the exercise of their youthful instinct to play upon the same.

The leading- case sustaining this rule is Railroad Company v. Stout, 17 Wallace, 637, which is followed and emphasized in Union Pacific Railroad Co. v. McDonaly, 152 U. S., 262.

Our Supreme Court has not had before it a ease directly involving the question, but there have been eases before it that involved the principle underlying the doctrine, and in those cases it has been more than intimated that the rule as ennuneiated in Railroad v. Stout was the correct one.

In Harriman v. The Railway Co., page 11, the first paragraph of the syllabus reads:

“Where a railroad company has, for a long time, permitted the public, including children, to travel and pass habitually over its road -at a given point, without objection -or hindrance, it should, in the operation of its 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, having due regard to such probable use, and proportioned to the probable danger to- persons so using its road.”

In that case- our Supreme Court expressly approves the leading case -of Lynch v. Murden, 1 Adolphus & Ellis (New Series), 2, upon which ease was largely founded the decision in Railroad Company v. Stout.

In the ease of Railroad Company v. Snyder, 19 O. S., 399, it was held:

“The negligence- of parent, or custodian of a child, can n-ot be imputed to the child, to bar its right of action against others f-o-r injuries resulting from their wrongful acts.
“It is the duty, of persons in charge of -cars, passing along streets or -other frequented places, to- exercise great caution; and if, by failure to do so, a child of tender years- is injured. the company is liable in an -action by the child, notwithstanding the negligence of the parent in permitting it to- be on the track, or of the person in -charge- of the dhi-ld, in not keeping a proper 1-ook-out for the cars.”

In- the opinion, after quoting Lynch v. Murden, and a number of other eases, it is said on page 415:

“The injury here was -within the ordinary an-d probable sequence of -events, -a result of the defendant’s negligence. It might reasonably have been- anticipated. There was danger of its happening, such as an ordinarily careful and prudent person might have -apprehended, and would be likely to apprehend, as a possible result of any relaxation of vigilance and care. ’ ’

On principle hhis seems to us should be the proper doctrine. It can- not be said -that where -a railroad company permits its right of way to- be unfenced, and constantly used as a highway, and constructs in such place an appliance, such as a turn-table, that is especially attractive to -children, and which necessarily would lead the-m in the enjoyment of their natural instincts to play upon it, that it owes- no duty to such children, and espécial-ly s-o- when it is shown that the company knew of such use- of the appliance.

In Loomis v. Terry, 17 Wend., 497, whi-ch is spoken of approvingly in Walsh v. Railroad Co., 145 N. Y., 301, Justice Cowen said:

“The business of life must go forward, and the fruits of industry must be protected’; a man’s gravel pit is fallen into by-trespassing cattle; his corn eaten, or his sap drunk, whereby the cattle ai*e billed; his unruly bull gores the intruder, or -his trusty watch dog properly and honestly kept for protection, wories the unreasonable trespasser; such -consequences can n-ot be absolutely avoided.”

Tru-e-, but at the same time, the owner must take care that he offers no- inducements or implied invitation to visit “the unruly bull”, -or “trusty watch dog”, for if he does, he transforms that which would be a mere trespass or license into- a legal right.

Whether th-e- fastening upon the turn-table was.a sufficient one, in the exercise of ordinary care, by the company, was a question, of fact to be submitted to the jury. Indeed, the -whole question was one for the jury, except the law required the direction of a verdict for the defendant, under -the rule that the company owed-the child no duty, which we have seen is not the correct rule in this state.

. A. 8. Gole and Squire. Sanders & Dertvasey, for plaintiff in error.

W. J. BecMey, for defendant in error.

The trial judge submitted the case fairly and intelligently to the jury, and the verdict was against it.

In Railroad, Co. v. Stout, the third clause of the syllabus reads:

“ Though it is true in many cases, that where the facts of a case are undisputed, the effect of them is for the judgment of the court, and not for the decision of the jury. This is true, in that class of eases where the existence of such facts come in question, rather than where deductions or influences are to be made from them. And whether the facts be disputed or undisputed, if different minds may honestly draw different conelu-. sions from them, the case is properly left to the jury. ’ ’

This is also the -rule in this state.

We find no error in the record, and the judgment will be affirmed.  