#### WALSH v. FITCHBURG R. CO.

(Supreme Court, General Term, Third Department.

May 8, 1894.)

Negligence—Dangerous Premises—Turntables.

Where a railroad company maintains a turntable at a place accessible to children, and does not lock or fasten it in any manner, the company Is liable for injuries to children who are attracted to the premises to play with the turntable.

Appeal from circuit court, Rensselaer county.

Action by James Walsh, an infant, by Sarah Walsh, his guardian ad litem, against the Fitchburg Railroad Company, for personal injuries. From a judgment entered on a Verdict in favor of plaintiff, defendant appeals. Affirmed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

T. F. Hamilton, for appellant

Townsend, Roche & Nason (Henry T. Nason, of counsel), for respondent.

MAYHAM, P. J.

The plaintiff, James Walsh, aged about five years, went upon the premises of the defendant, in company with other children, and, while playing upon a railroad turntable of the defendant, was injured. The turntable was located on the line of the defendant’s railroad. This turntable was located in an open space in the city of Troy, and pedestrians were in the habit, without any special consent or objection of the defendant, of passing over this space near the turntable, in going from one point or street in the city to another. It is also in proof that children were in the habit of playing upon the turntable, some riding upon the same, while others revolved or turned the same by getting into the pit in which it was located, and pushing it around. The table was of the ordinary construction, and of the same kind- in use by the defendant at various other points on the line of the defendant’s railroad. It revolved easily upon a pivot in the centre, upon which it rested, and at the time of the injury was being pushed around by a lad 15 or 16 years old. It was not kept locked or bolted when *1098not in use by the defendants. The evidence showed that the plaintiff, who resided with his mother, about 300 feet from the turntable, had been forbidden going onto, or playing on, the same, and at the time of the injury had eluded his mother’s vigilance, and gone upon the table, without her knowledge or consent. This case has once before been before this court, on an appeal from a judgment ■of nonsuit, and was sent back for a new trial on the ground that the question of the negligence of the mother, in permitting this child to escape upon this turntable, and also the question of the negligence of the defendant, in allowing this table, without being bolted or locked, to be open, and accessible to children who desired to play upon the same, were both questions of fact for the jury. Walsh v. Railroad Co., 67 Hun, 604, *22 N.*Y. Supp. 441. This court then held, upon the authority of Kunz v. City of Troy (N. Y. App.) 10 N. E. 442, that it was not negligence per se to allow •children non sui juris to play in the public street, and whether or not it was negligence depended upon circumstances, which must be submitted to the jury. But it is claimed by the learned counsel for the appellant there is a distinction between a public street, where all may lawfully be, and private property, which is lawfully open to the entry of the owner and his servants only, and that, so long as the turntable was properly constructed for the use of the defendant on its own premises, the defendant owed no duty to the plaintiff, who, at most, was there only under an implied license, growing out of the frequenting of this place by children for play without objection. In support of this doctrine, he cites Larmore v. Iron Co., 101 *N.*Y. 391, 4 N. E. 752; Splittorf v. State, 108 N. Y. 205, 15 N. E. 322; Cusick’s Case (N. Y. App.) 21 *N.*E. 673; Murphy v. City of Brooklyn, 118 N. Y. 575, 23 N. E. 887. All of these cases proceed upon the theory that a defendant, who has lawfully placed upon his own premises something, by which another is injured while trespassing thereon, is not liable therefor, on the ground that he owes no duty to such trespasser,—a doctrine well established by authority, and which, in the abstract, cannot be questioned. But the evidence in this case seems to disclose an element not found in any of the cases cited. That element was the allurement and attraction furnished by this revolving table to the playful instincts -of children, against which the defendant seems not to have furnished any protection, and, by indulging children in the use of which, the defendant seems to have extended to them an implied license, without the revocation of which it could not have treated their ■entry as trespass. This element the learned trial judge submitted to the jury, to say whether the defendant, under all the circumstances, had invited, allured, or enticed the plaintiff upon the premises, to play with the turntable, and, if it had, whether such turntable was left in such a condition as to charge it with any resulting injury. This ruling follows the determination of this court when the case was here on a former appeal. 67 Hun, 604, 22 N. Y. Supp. 441. It is also in harmony with the decision of the United States supreme court in Railroad Co. v. Stout, 17 Wall. 657. In that case, Henry Stout, a boy six years old, without the knowledge of his *1099parent, went, in company with two other boys (one nine, and the other ten, years old), to the defendant’s railroad depot, and from there, at the suggestion of one of their number, to the defendant’s railroad turntable, to play. The turntable was a heavy structure, composed of wood and iron, but so balanced as to turn easily upon its center pivot or axle. It was not locked or bolted, nor was it watched or guarded by any employe of the company. While the other two boys were turning or revolving the table, the plaintiff attempted to climb upon it, when one of his feet was caught between the end of the rail on the turntable and the end of the rail on the stationary track, and was crushed. For this injury the plaintiff sued the railway company, and recovered a judgment. Two cases could scarcely be more nearly alike than that case and the one at bar. In delivering the opinion of the supreme court of the United States on appeal to that tribunal, Justice Hunt uses this language:

“That the turntable was a dangerous machine, which would be likely to cause injury to children who resorted to it, might fairly be inferred from the injury which actually occurred to the plaintiff. There was the same liability to injury to him, and no greater, than existed with reference to all children. When the jury learned from the evidence that he had suffered serious injury by his foot being caught between the fixed rail of the roadbed and the turning rail on the table, they were justified in believing that there was a probability of the occurrence of such accidents. So, in looking at the remoteness of the machine from inhabited dwellings, when it was proved to the jury that several boys from the hamlet were at play there on this occasion, and that they had been at play upon the turntable on other occasions, and within the observation and to the knowledge of the employes of the defendant, the jury was justified in believing that children would probably resort to it, and that the defendant should have anticipated that such would be the case. As it was the fact on this occasion, so it was to be, expected that the amusement of the boys would have been found in turning this table while they were on it, or about it. This could certainly have been prevented by locking the turntable when not in use by the company. It was not shown that this would cause any considerable expense or inconvenience to the defendant. * * * The jury may well have believed that if the defendant had incurred the trifling expense of replacing the latch, and had taken the slight trouble of putting it in its place, these very small boys would not have taken the pains to lift it out, and thus the whole difficulty would have been avoided. Thus reasoning, the jury would have reached the conclusion that the defendant had omitted the care and attention it ought to have given, that it was negligent, and that its negligence caused the injury to plaintiff.”

In Mullaney v. Spence, 15 Abb. Pr. (N. S.) 319, it was held that the defendant, who operated a coal elevator upon his own land by machinery calculated to attract the curiosity of children, was liable for injury to a child non sui juris, who was attracted into and upon the defendant’s premises, which were not guarded or protected, and was injured, although the child was technically a trespasser upon the defendant’s land; and, although this was the determination of the general term of the city court of Brooklyn, it seems to have been well considered, and the learned judge cites Lynch v. Nurdin, 41 E. C. L. 423; Vale v. Bliss, 50 Barb. 358; Birge v. Gardner, 19 Conn. 506; Whirley v. Whiteman, 1 Head, 610; Mangam v. Railroad Co., 38 N. Y. 455; Cosgrove v. Ogden, 49 N. Y. 255. While the question cannot be regarded as entirely *1100free from doubt, the weight of authority seems to be that if a defendant erect and maintain upon his own land, for his own use,, a structure capable of inflicting injury to persons, and, by its appearance and operation, calculated to attract or allure children non sui juris, and to endanger their lives or limbs, and leaves the same unguarded, and injury results therefrom to such children,, without the fault or negligence of their parents or guardians, it is negligence on the part of the defendant, for which a recovery may be had; that under such circumstances the party erecting and maintaining such dangerous structure owes a duty to society to so guard the same that young children shall not be lured thereto,, to their destruction.

If we are right in this, the only remaining question is as to the amount of damages in this case.

While the damages in this case are larger than we, sitting as jurors, might have awarded, we must recognize the fact that ordinarily it is the province of jurors, under proper instructions, to-regulate the amount of damages to be awarded in a given case, and that the court should not usurp that prerogative of the jury unless the damages are so disproportionate to the amount of injury suffered as to evince bias, prejudice, or passion on the part of the jury. We fail to see in the amount of this verdict any evidence of the presence of such improper emotions on the part of' the jury. We think the trial judge was right in denying a motion to set aside the verdict as excessive. Judgment and order denying a motion for a new trial affirmed, with costs.

PUTNAM, J. The decision of the court in Walsh v. Railroad Co., 67 Hun, 604, 22 N. Y. Supp. 441, renders an affirmance of the judgment necessary, and I therefore concur.

HERRICK, J., concurs.