Rodgers v. Lees , 140 Pa. 475 ( 1891 )

Opinion,

Mr. Justice Green:

If the chain and ball at the defendants’ mill had been running regularly in the actual business of raising or lowering grain or flour, and the plaintiff’s son had jumped upon the ball to ride up in the air, and fallen, it certainly could not be held that the defendants would be liable for the consequences. They would have been in the lawful prosecution of their business, with an apparatus proper for such uses, and owing no duty of protection to passing children against the consequences of their reckless acts in rushing into so manifest a danger. So, if a boy of tender years attempts to climb upon a train of cars while in active movement, regardless of the dangerous results likely to ensue, and is injured, he certainly cannot recover damages from the company upon the theory that he cannot be guilty of contributory negligence. If, in the present case, the chain and ball had not been in motion, but were at rest, and the boy had jumped upon the ball precisely as he did, .and his act had set the chain to running, and started the ball upward, there would be plausibility in the argument for a recovery that the boy was ignorant of the effect of his act. The case then, would perhaps have come within the decision of this court in the case of Hydraulic Works Co. v. Orr, 83 Pa. 332. That decision was put expressly upon the ground that there was nothing to indicate the dangerous character of the platform, which was so placed that it was liable at any moment to fall, and crush children beneath it like mice in a dead-fall. In the case of Gillespie v. McGowan, 100 Pa. 144, we said that that case “ was decided upon its own peculiar circumstances,” and we also said “it was not intended to assert the doctrine that a child cannot be treated as a trespasser or wrong-doer; and so far as it appears to sanction such a doctrine it must be considered as overruled.” We also said, “Hydraulic Works Co. v. Orr is authority only for its own facts.” We further said: “ It is settled by abundant authority that, to enable a trespasser to recover for an injury, he must do more than show negligence. It must appear there was a wanton or intentional injury inflicted on him by the owner.”

That a child of tender years may be a trespasser, and be subject to the consequences of his trespass, has been decided by this court so many times, and in so many varying circumstances, that the question is no longer open to discussion: Phil. etc. R. Co. v. Hummell, 44 Pa. 375; Flower v. Railroad Co., 69 Pa. 210; Duff v. Railroad Co., 91 Pa. 458; Cauley v. Railway Co., 95 Pa. 398; s. c. 98 Pa. 498; Hestonville Ry. Co. v. Connell, 88 Pa. 520; Moore v. Railroad Co., 99 Pa. 301; Balt, etc. R. Co. v. Schwindling, 101 Pa. 258; Gillespie v. McGowan, 100 Pa. 144; Oil City etc. Bridge Co. v. Jackson, 114 Pa. 321; McMullen v. Railroad Co., 132 Pa. 107.

In Cauley v. Railway Co., 98 Pa. 498, we held that where a boy seven years old, who was playing upon a sand-car, was ordered off the car by the conductor while the car was moving slowly, and in getting off was injured, there could be no recovery. When the case was first heard in this court, reported in 95 Pa. 398, we said: “In regard to the suit brought for the child by his father as his next friend, it is sufficient to say that, the child being unlawfully upon the car, the defendant company owed it no duty, and is not liable for the injury.” In Hestonville Ry. Co. v. Connell, 88 Pa. 520, where a child six years and nine months old was injured in attempting to get on the front platform of a car while in motion, we held there could be no recovery. Mr. Justice Gobdon, in delivering the opinion, said: “ Nevertheless, it may be assumed that a child old enough to be entrusted to run at large has wit enough to avoid ordinary danger, and so persons who have business on the streets may reasonably conclude that such a one will not voluntarily thrust itself under the feet of his horses, or under the wheels of his carriage: a fortiori may they conclude that they are not to provide against possible damages that may result to the infant from its own wilful trespass.” In the case of Moore v. Railroad Co., 99 Pa. 301, a boy of ten years was walking along the track on the sleepers, and was run over by a passing train and killed. We held there could be no recovery, because he was a trespasser. We said: “The circumstance that the trespasser in this instance was a boy ten years of age, cannot affect the application of the rule. The defendants owed him no greater duty than if he had been an adult. They are not subject to an obligation to take precautions against any class of persons who may walk on and along their tracks.” In Oil City etc. Bridge Co. v. Jackson, 114 Pa. 321, a boy of seven years, while crossing upon defendant’s bridge, got upon a gas-pipe, five inches in diameter, at a place where there was an opening in the floor, and while walking on the pipe fell into the river below and was drowned. We held there could be no recovery. Mr. Justice Paxsost, delivering the opinion, said: “ The child who was killed was not using it (the bridge) in the ordinary way. He was walking upon the gas-pipe, where he ought not to have been, and which was so dangerous that his younger brother remonstrated with him, and warned him to get off. It is not necessary to impute negligence to the child; it is sufficient that he was injured, not as the result of the use of the bridge, but as the consequence of his venturing in his childish recklessness where no one, child or adult, had any business to be.”

These principles are precisely applicable to the present case. The chain and ball were not at rest; they were in actual motion, and the boy, fully knowing that and intending to do exactly what he did do, jumped upon the ball for the very purpose of riding upward on it. The boy who was with him, and who testified for the plaintiff, said:

“ The ball was down. When both of us met he said: ‘ Hello, Kinney; I bet I can go up higher on the ball than you.’ I told him he had better not, he would fall. I did not hear him say anything then. He got on the ball, and sat on the ball, and held the chain. Then when he was going up he tried to get down. He got down from the ball, and the hook catched him, —I think that the hook catched him, — and then when he was going up higher the hook gave way when he was going up. Then he hung with his hands on the ball. Then Tom McCormick came out of the door of the mill, and when he saw the boy going up he ran to leave the ball down. Then the boy fell before he had time.”

It is thus fully proved by the plaintiff, and not contradicted, that the boy got upon the hall for the express purpose of riding up on it, and notwithstanding his companion warned him not to do it, saying he might fall. His death was caused solely by his own rash and reckless act while in a place where he had not the least right to be. Of course he was a trespasser, in every sense of the word. The ball and chain were not used for any purpose of conveying persons up or down, and the case is therefore stronger than either Cauley v. Railway Co. or Hestonville Ry. Co. v. Connell. We can see no reason why the principle of those cases is not strictly applicable to this, only in a greater degree. And the doctrine of Balt. etc. R. Co. v. Schwindling, Phil. etc. R. Co. v. Hummell, and Oil City etc. Bridge Co. v. Jackson, that the boy was in a place where he had no right to he, and where he was not entitled to any protection from the defendants against his own reckless trespass, is, if anything, still more applicable. In the Oil City Bridge case the boy had a right to be on the bridge for the purpose of crossing it, and in the Schwindling case the boy was not necessarily a trespasser by being on the platform; but here the trespass was absolute, and very gross. There was no right, or justification, or excuse of any kind for the presence of the boy, or of any other person, on the ball for any purpose whatever, much less for the purpose of riding on it. In point of fact, the ball and chain had been in use for hoisting up material until almost the moment of the accident. One of the men was still in the mill. A number of the defendants’ hands testified that the ball was stopped, and hung up out of ■ reach, but in some way they could not account for, it had got in motion again, showing that the ball was not carelessly left dangling and in a condition to move. In this momentary interval, it happened that the plaintiff’s son came along and jumped upon it. Upon the whole case, we think the defendants’ first and second points should have been affirmed.

Judgment reversed.

Mr. Justice Clark noted his dissent.