Union Pacific Railway Co. v. McDonald

delivered the opinion of the court.

The Union Pacific Pailroad Company seeks the reversal of the judgment below for the sum of $7500, the amount assessed against it, by the verdict of a jury, as compensation to the

The evidence, on behalf of the plaintiff, tended to establish the following facts: At the time and before the injuries in question were received the defendant owned and operated a railroad, immediately on the line of which was the village of Erie, Colorado, containing about six hundred inhabitants. Within a few hundred feet of its depot at that village the company operated a coal mMe. Between the. shaft-house of the mine and the depot building were the tracks of 'the railroad. A narrow, rough, uneven foot-path to the coal mine extended»from the depot building, over the railroad tracks, and close to a slack pit or trench. In working the mine, the company’s agents and employés had deposited along and close by the track, between the shaft-house of the coal mine and the depot building, a very large quantity of coal slack, which extended up and down the track. The slack was piled up so as to generate .heat and cause it to take fire underneath' by spontaneous combustion, and was not spread out in thin layers upon the surface of the ground. It was in a long trench formed on the east side of the railroad in excavating and throwing up dirt for the track, and the top of which was on a level with the ground around it. The path, above referred to, was described by a witness as “ a little bit above the fire, sort of rim running around the fire, about eighteen inches wide.”

Eor a long time prior to the injuries complained of this slack burned continuously under its surface. A few inches below the surface was a bed of burning coals, extending nearly thé whole length of the pit. The surface was a mere covering of ashes, sufficient in depth to conceal from view the fire underneath. Except when there was rain, snow, or wind* no smoke would be emitted from the slack pit, nor would there be any visible indications of the existence of the burning coals under the ashes covering the slack.

For some time, perhaps as long as two years, before the day on which the plaintiff was injured, the company’s agents and officers had knowledge of the existence of this slack pit, and of its dangerous condition as above stated. Cattle had been known to stray into it and get burnt. This fact was known to the company’s agents.

The children of the miners were accustomed to go to the mine just as it suited, them. They were allowed to pick up coal and carry it to their homes. A witness, who was a coal miner and had worked on this mine, testified that “ he had frequently, nearly every day, seen children play around there, and they were allowed to go around the machinery where the shaft was; and this was allowed during all the years this mine was operated. During the time he worked there, he never heard of any objections to children coming on the premises, or of their being driven off.” Another witness who had worked in the mine in 1884, and had been acquainted with it before and after that time, and who was asked to state what he knew about strangers, men and women, being allowed to go about the mine, said: “"Well, in general, strangers coming to the town, about the first look they take is over to the mine and engine; they are so near the town, and for curiosity they often walk over1; never heard of anybody, children or others, being driven away from the works; the slack pile was covered with ashes and the fire could not be- seen ; the path was about 18 inches wide and near .the level of the trench; it was rough and slanting down toward the fire.” On cross-examination this witness stated that “ the pile had been burning in that way for about two or three years, and the path above it could not be easily seen ; that while you would undoubtedly see it, still a person could not follow it clearly, plainly, and easily, and ladies going to the graveyard would avoid it and did not

The slack pit had no fence around it, nor was it guarded in any way. There was nothing in its appearance, when the weather was clear, to indicate that there was fire beneath the surface of ashes.

On the 3d of September, 1884, the plaintiff, a lad about 12 years of age, visited Erie with his mother. Neither the mother nor the child had any knowledge of this slack pit. After dinner of that day, in the afteínoón, the plaintiff obtained the consent of his mother to visit the coal mine in company with a “trapper” boy of the town, with whom' he had become acquainted. While at or near the shaft-house his attention was attracted to a man in the act of sending a pair of mules down the shaft. About that time five or six boys came from the coal pit, having lamps on their hats, and dirty faces.. One of them yelled, “ Let’s grease him,” another, “ Let’s burn him.” They started towards the plaintiff, who, becoming frightened, ran away, intending to take the small path that skirted the slack pit, the only one leading from the mouth of the coal pit or from the shaft-house to the depot building and the village. In attempting to pass some persons who happened to be on the bank or near the edge of the slack pit, he slipped and fell into the burning slack, breaking through the covering of ashes. He came very near sinking with his entire body into the bed of fire underneath the ashes, and would have perished instantly, if he had not been pulled out by a grown person near by at the time.

The person who rescued him testified that the- day was a nice, calm one; that he, witness, started for his home, and hearing some one screaming, he saw the boy fall into the burning slack while funning from the trappers who had scared him. “ These .trappers,” the witness said, “ were boys down in the mine for the purpose of leading the mules. The boy, George McDonald, was running in the direction of the path that led to the town. He ran into the fire, and fell onto .his hands and

As the result of th’e injuries received by him, the plaintiff’s hands and arms became weakened and in part disabled, and his face badly scarred and disfigured. His general health was greatly and permanently impaired. His kidneys became seriously weakened and diseased. He suffered intense pain, and was confined to his bed for a' long period of time, disabled in the use of his hands in any way.

At the time the plaintiff was injured there was in force a statute of Colorado, passed May 3, 1877, entitled “ An act to compel owners of coal mines to fence their slack piles and abandoned pits.” That statute was as follows: “ § 1. That the owner and operators of coal mines from which-fine or • slack coal is taken and piled upon the surface of the ground, in such quantities as to produce spontaneous combustión, shall fence said ground in such manner as to prevent loose cattle or horses from having access to such slack piles. § 2r. All owners of lands having abandoned coal pits or shafts on the same, of

The defendant examined two witnesses. Neither of them testified to any material facts inconsistent with those above stated. They were introduced for a purpose to which we shall presently refer.

At the close of all the testimony the defendant asked the court to instruct the jury “ that there is not sufficient evidence to warrant the jury in finding that the plaintiff has received any permanent injuries or impairment of his capacity to earn wages, and that because such serious injuries, if any, are not shown to have follpwed after the other is not sufficient to warrant the jury in finding that the one is the cause of the other.”

The court, in its charge to the jury reviewed the evidence, and said : “ It is not claimed the plaintiff had any notice or knowledge of the fact that there was any fire in the place where he received his injury, or that by the exercise of reasonable care and diligence he could have seen or discovered the fire. The law made it the duty of the defendant to fence its slack pit, and if it did not do so, and as a result of its negligence in failing to comply with its legal duty in this regard the plaintiff receivéd the injuries complained of, the defendant is liable. Persons are entitled to the protection which would accrue from a compliance with the statute, and the plaintiff had a right to presume the space between the railroad tracks Avas not a burning slack pit because it was not fenced. It was the legal duty of the defendant to fence the burning slack, and its omission to do so was negligence.

After instructing the jury in respect to the measure of damages, the court said: “ The plaintiff’s' attorney has said to you, gentlemen, that he claimed, and that you ought to award, more than a compensation. He is not content with compensatory damages — that is, the damages you shall find

The defendant excepted “ to the refusal of the court to instruct that there was not sufficient evidence as to the question of serious or permanent injury, and leaving the question of serious impairment to them, and also to the instruction not given, and to the giving of the instruction as to all questions connected with permanent injury, and to the withdrawing the question of negligence of defendant and contributory .negligence of the plaintiff from the jury.” 35 Fed. Hep. 38.

Before examining the grounds of defendant’s exceptions to the: action of the court below in giving and refusing instructions, we will consider the general question presented by the case, namely, whether the owner or occupant of premises is liable, under any circumstances, .and, if so, under what. circumstances, for injuries received by a person while on such premises, and by reason of their dangerous condition.

In Bennett v. Railroad Company, 102 U. S. 577 , 580, it was said that “ the owner or occupant of land who, by invitation, express or implied, induces or leads others to come upon his premises, for any lawful purpose, is liable in damages to such persons—they using due care—for injuries occasioned by the unsafe condition of the land or its approaches, if such condition was known to him and not to them, and was negligently suffered to exist, without timely notice to the public, or those who were likely to act upon such invitation.” This rule, the court said, was founded in justice and necessity, and was illustrated by many cases.

A leading case upon this subject, cited and approved by this and many other courts, is Lynch v. Nurdin, 1 Q. B. 29, 35, 36. The facts in that case were these: The defendant’s carman went into a house, leaving his horse and cart standing in a street for about half an hour, without any person to take care of them. The plaintiff, a lad about seven years of age, with several other children, were playing with the horse around, the cart. During the carman’s absence he got upon the cart. Another boy led the horse on while the plaintiff was attempting to get off the shaft. The plaintiff fell and was run over by the wheel, and his leg broken. The court was asked to direct the jury that there was no evidence in support of the plaintiff’s case, his own negligence having brought the"mischief upon him. This request was refused, and it was left to the jury to say, first, whether it was negligence in the defendant’s servant to leave the horse and cart for half an hour in the manner disclosed; and, secondly, whether that negligence occasioned the accident. The case came before the Queen’s Bench upon a rule nisi for a new trial on the grounds of misdirection,, and because the verdict was against the evidence. Lord Denman, Chief Justice, delivering judgment, referred to the contention that the mischief was not produced by the mere negligence of the servant,, but, at most, by that negligence in. combination with two other active'causes, namely, the advance of the horse in consequence of his"being éxcited by the other boy, and the plaintiff’s improper conduct^ in mounting the cart, and so committing a trespass upon the

We have referred quite fully to the case of Lynch v. Nurdin, because it was cited in Railroad Co. v. Stout, 17 Wall. 657 , 661, in connection with other cases in support of the rule, laid down in that case, that while a railway company is not bound to the same degree of care in regard to mere strangers who are unlawfully upon its premises that it owes to passengers conveyed by it, it is not exempt from responsibility to such injuries arising from its negligence or from its tortious acts.

In Railroad Co. v. Stout, the principal question was whether a railroad company was liable for an injury received by an infant, while upon its premises, from idle curiosity, or for purposes of amusement, if such injury was, under the circumstances, attributable to the negligence of the company. The facts in that case were these: The railway 'company owned and used for its roadbed and depot grounds a tract of- unenclosed land, in the town of Blair, Nebraska, upon which the company had its depot house, a quarter of a mile from which was a turn-table belonging to it. The plaintiff, a boy a little over six years of age, together with one or two other boys, went to the company’s depot, about a half a mile distant, without any definite purpose in view.. Upon arriving there, the boys, at the suggestion of one of them, proceeded to the

Judge Dillon, Circuit Judge, in his charge to the jury, after observing that negligence was the omission to do something that a reasonable, prudent man, guided by those considerations that ordinarily regulate the conduct of human affairs, would do, or doing something that a prudent or reasonable man would not do under all the circumstances of the particular transaction under judicial investigation, and that if the turntable, in the manner it was constructed and left, was not dangerous in its nature, the defendants would not be guilty of any negligence in hot locking or guarding it, said: “ The machine in question is part of the defendants’ 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 turn-table to play, or did not know, or had np/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 that 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.”

The principles announced in Railroad Co. v. Stout have been approved in many adjudged cases. In Keffe v. Milwaukee & St. Paul Railway, 21 Minnesota, 207, 211, which was also the case of an injury received by a child of tender years, while playing upon an unfastened and unguarded turntable of a railroad company, the court, overruling a motion based on the pleadings for judgment rendered in favor of defendant, said: “Now, what an express invitation would be to an adult, the temptation of an attractive plaything is to a 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 thus alluring them, it certainly would be no defence to an action by the plaintiff, who had been attracted upon the turn-table 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 turn-table was likely to attract and injure young children, 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 danger. But the complaint stated that the defendant knew that the turn-table, when left unfastened, was easily involved; that, when so left, 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

The Minnesota case is referred to by Judge Cooley in his Treatise on Torts. Alluding to the doctrine of implied invitation to visit the premises of another, he says : “ In the case of young children, and other persons not fully sui juris, an implied license might sometimes arise' when it would not on behalf of others. Thus, leaving a tempting thing for children to play with exposed, where they would be likely to gather for that purpose, may be equivalent to an invitation to them to make use of it; and, perhaps, if one were to throw away upon his premises, near the common way, things tempting to children, the same implication should arise.” c. 10, p. 303.

An instructive, case upon the general subject is Powers v. Harlow, 53 Michigan, 507, 514, 515. That was an action by an infant to recover damages for injuries received while he was on the premises of the defendant, a small parcel of which was under lease to the boy’s father. The defendant had sometimes used dynamite for removing stumps that obstructed the cultivation of his lands. This dynamite was put up in boxes, in which were smaller boxes, containing exploders. One of these boxes was placed by the defendant’s servant in a temporary shed on his farm. There was no enclosure about the shed. The word “powder” was written on the box, but neither the plaintiff nor his father could read, nor had either been told that anything dangerous was stored there. The shed was distant from any public highway, but of the several parcels of land leased by the defendant, the one leased by the plaintiff’s father was nearest to the shed, (within ten rods or less,) and' to the farm road used by the defendant’s lessees in reaching the parcels respectively cultivated by them.

The Supreme Court of Michigan, speaking by Chief Justice Cooley, said: “ Under the circumstances disclosed in this case the invitation to the tenant to come upon the land was an invitation which embraced his family also. The tenant was a laboring man, apparently of small means; and it is customary for such men to be assisted in their manual labor by the members of their families; and the defendant must have understood that the persons who rented of him these small patches of land would be likely to avail themselves of the services of their children in cultivating them.” Again, in the same case: “ 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 leave exposed to the observation of children • anything which would be tempting to them, and which they in their immature judgment might naturally suppose they were at liberty to handle or play with, they should expect that liberty to be taken. ... A man of ordinary prudence, if told that so dangerous an article was so carelessly stored/ might well have deemed the statement incredible. We cannot under these circumstances Say that the plaintiff’s father was chargeable with fault in not suspecting danger and warning his children away from it, or that the child himself was blameworthy in acting upon the childish instincts and propensities which combined with .the negligence of defendant’s servant to bring the danger upon him.” To the same general

We adhere to the principles announced in Railroad Co. v. Stout, supra. Applied to the case now before us, they require us to hold that the defendant was guilty of negligence in leaving unguarded the slack pile, made by it in the vicinity of its depot building. It could have forbidden all persons from coming to its coal mine for purposes merely of curiosity and pleasure. But it did not do áo. On the contrary, it permitted all, without regard to age, to visit its mine, and witness its operation. It knew that the usual approach to the mine was by a narrow path skirting its slack pit, close to its depot building, at which the people of the village, old and young, would often assemble. It knew that children were in the habit of frequenting that locality and playing around the shaft-house in the immediate vicinity of the slack pit. The slightest regard for the safety of these children Avould have suggested that they Avere in danger from being so near a pit, beneath the surface of which was concealed (except when snoAV, Avind, or rain prevailed) a mass of burning coals into Avhich a child might accidentally fall and be burned to death. Under all the circumstances, the railroad company ought not to be heard to say that the plaintiff, a mere lad, moved by curiosity to see the mine, in the vicinity of the slack pit, was a trespasser, to whom it owed no duty, or for whose protection it was under no obligation to make provision.

In Townsend v. Wathen, 9 East. 277, 281, it was held that

The evidence of the two witnesses, introduced by 'the defendant, that a boy was warned off the coal shaft on the-morning of the day when plaintiff fell into the slack pit, had no reference to the plaintiff. The boy to whom they referred was one who was at the shaft-house in the forenoon. The plaintiff did not go there until the afternoon. Both of these witnesses saw the plaintiff, at the time of the trial, and were unable to identify him as the boy to whom the warning

Nor is there any force in the suggestion that the plaintiff was negligent in falling into the burning slack. The conduct of the persons who came out of the coal pit, with lamps upon their heads and with dirty faces, yelling “ Let’s grease him,” “ Let’s burn him,” frightened the lad, and caused him to run in the direction of the town where his mother was staying. He ran towards the only .path that was open to him, and made such efforts as he could to escape those who threatened to harm him. His falling into the slack heap was accidental, and in no proper or just sense the result of negligence. The question of negligence upon the part of an infant must be determined with reference to his age and to the situation in which, at the time of the injury, the circumstances placed him. The authorities cited — indeed, all the adjudged cases — agree, as declared by the Court of Appeals of New York, that in applying the rule that a person who seeks to recover for a personal injury, sustained by another’s negligence, must not himself be guilty of negligence that substantially contributed to the result, the law discriminates between children and adults, the feeble and the strong, and only requires of each the exercise of that degree of care to be reasonably expected in view of his age and condition. Reynolds v. N. Y. Central &c. Railroad, 58 N. Y. 248 , 252. And so, as declared by the same court, persons in sudden emergencies, and called to act under peculiar circumstances, are not held to the exercise of the same degree of caution as in other cases. Thurber v. Harlem Bridge &c. Railroad, 60 N. Y. 326 , 336. Even in the case of an employé of a railroad company, claiming to have been injured as the result of the company’s negligence, this court has said that in determining whether he has recklessly exposed himself to peril, or failed to exercise the care for his personal safety that might be reasonably expected, regard must always be had to the exigencies of his position, indeed, to all the circumstances of the particular occasion.

Equally, without merit is the suggestion that the mother was negligent in permitting the plaintiff to visit the coal mine. There was, in fact, very little danger, under ordinary circumstances, in visiting the mine, except that which came from its contiguity to the burning slack pile. But of the existence of that concealed danger both the plaintiff and his mother were ignorant. If the negligence of a parent can be imputed to the child so as to prevent the latter from maintaining an action for personal injuries received by him from others, — upon which question we express no opinion, — it is sufficient to say that negligence cannot -be attributed to the plaintiff’s mother because of her consenting that her son might visit the coal mine in company with one of the trapper boys of the' village, who was, presumably, capable of caring for him while away from the mother.

At the close of the charge by the court there was a general exception to the withdrawal from the jury of the questions of the defendant’s negligence and the plaintiff’s contributory negligence.

The court correctly said that there was no controversy about the leading facts of the case, and that the defendant was guilty of negligence. As the facts were undisputed, the question of liability upon the ground of negligence was one of law, and as the facts showed negligence by the railroad company, which was the primary, substantial cause of the injury complained of, it was not error in the court to so declare.

The only question that could arise upon this part of the case is "whether the court should' have instructed the jury — as, in effect, it did — that the failure of the company to put a fence around the slack pit, as required by the statute of Colorado, was negligence, of which the plaintiff could com

Nor did the court err in saying to the jury that the disputed issue was the question of damages. Looking at all the facts, there was an entire absence of any just ground for imputing contributory negligence to the plaintiff: If the jury had so found, the court could properly have set aside the verdict as being against the evidence. Upon the question of negligence, the case is within the rule that the court may withdraw -a case from the jury, altogether, and “ direct a verdict for the plaintiff or the defendant, as the one or the other may be proper, wher^ the evidence is undisputed or is of such conclusive character that the court, in the exercise of a sound judicial

Judgment affirmed.