Chadwick v. Detroit & Toledo Shore Line Railroad , 364 Mich. 545 ( 1961 )

364 Mich. 545 (1961) 111 N.W.2d 877

CHADWICK
v.
DETROIT AND TOLEDO SHORE LINE RAILROAD COMPANY.

Docket No. 65, Calendar No. 48,779.

Supreme Court of Michigan.

Decided November 30, 1961.

Richard E. Manning, James F. Finn, Hugh K. Davidson, and Armand A. Palombo, for plaintiff.

Robert L. Livesay, for defendant Detroit and Toledo Shore Line Railroad Company.

PER CURIAM:

Defendant Detroit and Toledo Shore Line Railroad Company was 1 of 4 defendants sued for negligent injury of plaintiff's son, Richard Chadwick. The declaration filed alleged that in 1947, when Richard was 6 years old, he sought to hop a ride on a train, fell under the wheels of the train, and suffered the amputation of both legs.

The declaration alleged the existence of a pond formed by the right-of-ways of 3 railroads, that the pond constituted an attractive nuisance which brought children (including Richard) to the area, that incidental to swimming in the pond the children made a practice of hopping rides on trains, that all of this was known to all defendants and that they negligently failed to remove or prohibit and restrain these dangerous conditions and practices.

Defendant Shore Line filed a motion to dismiss as to it, supported by affidavits. The circuit judge set a hearing to take testimony on the motion, under Court Rule No 18, § 3 (1945); and dismissed plaintiff's suit as to defendant Shore Line. Plaintiff-appellant appealed.

By plaintiff's declaration or by stipulations before the trial court and this Court, 3 basic facts were established for purposes of this appeal; First, the train which injured Richard was owned and operated by another defendant railroad, and not by defendant Shore Line. Second, the right-of-way on which it was operated at the time was owned and controlled by another defendant railroad, and not by defendant Shore Line. Third, the land on which the pond claimed by plaintiff's declaration to constitute an attractive nuisance was located was owned and controlled by other defendant railroads, but not by defendant Shore Line.

Under these facts, the circuit judge was correct in dismissing the suit as to defendant Shore Line.

Plaintiff relies upon the fact that this Court, in Lyshak v. City of Detroit, 351 Mich 230, and Swanson v. City of Marquette, 357 Mich 424, adopted the rules of negligence law pertaining to trespassing children in 2 Restatement, Torts, § 339.

The first sentence of this section reads:

"A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land."

Plainly, defendant Shore Line, on the facts pleaded or stipulated, is not a possessor of such land.

Affirmed. Costs to appellee.

DETHMERS, C.J., and CARR, KELLY, BLACK, EDWARDS, KAVANAGH, SOURIS, and OTIS M. SMITH, JJ., concurred.