York v. Pacific & Northern Railway Co.

QTJAELES, C. J.

— I concur in the conclusion reached in this ease, and agree with the reasoning of my associate who has written the main opinion, and think the authorities fully sustain the conclusion reached. I have carefully read and reread the evidence in this ease. In my opinion, the claim of the appellant that the death of the deceased child is attributable to contributory negligence on the part of the plaintiff is not sustained by the evidence. The plaintiff testified that he went with his family to Cambridge to witness a game of baseball; that he, his wife and children, and the hired man remained in his wagon for awhile before the game commenced; that he was chosen to play on one side, and left his wagon and engaged in the game; that he did not permit the deceased, a boy less than fivp years old, to leave the wagon; that while he was playing ball he heard some children laughing and making a noise, and looked back of where he was standing, and saw about twenty-five children .playing on the turntable, and thought he recognized his little boy among them, and then started to the wagon, when immediately he heard his wife screaming, and saw a lad carrying his little son, and went to him, and found him crushed and so injured that he died about three hours afterward; that he did not know up to that time the dangerous nature of turntables. There was evidence contradictory to the statements of plaintiff, but it is apparent that the jury were authorized to *588and did believe and accept the statements of the plaintiff as true. I am not in sympathy with the idea that it is the duty of a parent to keep his child in sight all of the time, and hold it by the hand, in order to protect it from unsuspected dangers. Nor can I give my assent to the establishment of a rule which would preclude a recovery in cases like the one before us, because forsooth a parent could have prevented the injury by keeping his child at home or imprisoned in some way so that he could not go upon a highway and witness games of sport and indulge in other innocent amusements. If the plaintiff knowingly sent his little son into danger, or knowingly permitted him to go upon the turntable knowing it to be dangerous, he could not and should not recover in this case.

The turntable in question was a dangerous instrument, 'insecurely fastened, in its very nature attractive to children, was located in a public place, and the agents and employees of the defendant corporation knew its dangerous character, and knew that it was frequented by people in the vicinity and used by them for amusement. The construction of the machine was such that the distance between it and the frame in which it revolved was greater on one.side than on the other, so much so that the limb of a person, and the body of the deceased, could be caught between the table and the frame around it. This fact, and the fact that children could revolve it, made it so dangerous that it became the duty of the defendant to keep it so secured that it would be safe. It would be no more difficult or inconvenient to keep this turntable locked than it is to keep a switch which is in constant use locked. It is usual, if not universal, for railroad companies to keep switches which are in constant use locked. The use of a lock upon this turntable would have prevented the accident, and the failure of the defendant to so secure the said turntable'is negligence. My attention has been called to the decision in Edgington v. Railroad Co., 116 Iowa, 410, 90 N. W. 95, recently decided by the supreme court of Iowa, and which is directly in point, where all of the authorities that support the conclusion reached in this case, as well as those opposed, are carefully reviewed.