St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1890-05-17


Ellen OMalley, as Administrative, etc, re-
spondent, VS.. The st. Paul, Minneapolis d
Manitoba Railroad Company. appellant.
Order affirmed. GILFILLAN, Z. j.
Syllabus: Evidence held sufficient TO
Justify the verdict. The owner of any
machine which he knows to be dan
gerous to children too young to know
the danger, and of too immature JUDI
ment Or discretion to control their nat
ural instinct to amuse themselves with
anything that may attract them as
paything, and which he knows, or
ought to know, may attract them, and
who knows it Is SO placed that it does
attract them to play with 1t, is under
duly us to such children to exercise the
degree of care which an ordinarily pru-
dent person would use to prevent its i'll
jurins them. What that degree of care
requires him to do is ordinarily QutS-
ton for a jury While in the case OF its
turntables and trucks standing on its
tracks, by playing with which such
children are injured, it is competent for
q railroad company, i'll Order to show
that it exercised due care, to prove that
it secured the turntables and trucks in
the Way customary with all railroad
companies, such proof is not con-
elusive that due care was exercised.
Defendant, sued for III urleS to child
through its negligence, denied i'll its an
swer the negligence charged, and al
legged contriDutory negligence OF the
cnild and Others who accompanied him.
Held. this limited its right TO prove COR
triDutory negligence to that pleaded,
SO that it could not prove negligence OF
the cnild's mother in allowing him to
go upon defendants grounds. Other
unimpurtant assignments OF error dis
posed of.
Judge Dickenson filed dissenting
opinion in this case, which Is as fol-
lows:
~ think the condition of the turn
table did not constitute ground upon
which liability Oh the part of the de-
PENDANT could have been found. The
only circumstance to be considered III
this connection was that the turntaDle
was left in such position that the re-
voIving track did not, perhaps, connect
with either of the two stationary tracks,
and that the table may have been I'M
fastened. The fact that it was not fast
ened bears no proXimate relation to the
accident or injury, if it was not set in
motion by the boys, but remained mo-
tiOnless and stationary. Ii it had been
fastened in the same position the results
would have been the same. AS to the
position of the turntable, it was not the
duty of the defendant to leave it con-
nected with one of these stationary
tracks rather than with the other, or
with either Of them. 1t could not be
be connected with both tracks. This
position hail nothing to do with the
boys coming here to play, or with set
ting the wheels in motion. The proba-
bility that injury would result from
leaving the turntable in that po-
sition seems to me to have been too
remote to allow culpable negligence to
be assigned because of it. The act was
| blameless unless that was to be reason
ably apprehended. see no justifica-
ton for a conclusion that injury was
more likely to occur from the turntable
being left in this position than il in any
other position. For these reasons
think that the refusal Of the defedant's
eighth request w as error"
Judge Collins concurred in the dis
Senting opinion.