Central of Georgia R. Co. v. Robins , 209 Ala. 6 ( 1923 )

Under the facts and conditions shown, we hold that the bill of exceptions was properly presented to a justice of this court and was duly established as a correct and legal bill of exceptions in the cause, in accordance with the provisions of Act September 25, 1915 (Gen. Acts 1915, p. 816), amending section 3022 of the Code. Munson S. S. Line v. Harrison,200 Ala. 504, 76 So. 446. The motion to strike the bill of exceptions will therefore be overruled.

The plaintiff, a boy 15 years of age, of normal growth and intelligence, went upon defendant's premises, in company with several younger children, and, while playing with defendant's turntable, which was left unfastened, suffered the injury of a broken leg.

The chief and, indeed, the decisive question presented by this appeal is whether or not the doctrine of the "turntable cases" is applicable to any normal child who has passed the age of 14 years. The doctrine of liability in this class of cases was settled in this state by the case of A. G. S. R. Co. v. Crocker, 131 Ala. 584, 31 So. 561 which followed the decision of the federal Supreme Court in the pioneer case of Sioux City, etc., R. Co. v. Stout, 17 Wall. 657, 21 L.Ed. 745. The report of the Stout Case shows that the injured child was only 6 years old, and the opinion formulates the doctrine upon the predicate of the duty owed to "an infant of tender years." In the Crocker Case, supra, also, the child was only 6 years old. With respect to the "turntable cases" and "attractive nuisance cases," the editor of Ruling Case Law observes:

"These decisions establish that while a proprietor may owe no duty to adults with respect to instrumentalities maintained by him, he may be liable for injuries to a child of tender years for injuries sustained from the same instrumentalities." (Italics ours.) 20 R. C. L. 79, § 70.

Pertinent to the question now before us, the same authority says:

"Inasmuch as the injured child's appreciation of the danger embodied by the offending instrumentality is a criterion for determining liability, it is obvious that the age of the injured child is of the first importance in determining whether a recovery should be allowed in any particular case. It has been said that the turntable doctrine is intended for the protection of children of tender years, whom from immaturity are incapable of exercising a proper degree of care for their own protection. Little or no direct consideration has been paid, however, to the age of the injured child. Indeed, some of the reports fail to state it entirely. Nevertheless, it appears clearly enough that the older and more intelligent the child, the less reason is there for permitting a recovery. In many cases where men, or boys approaching manhood, would be held to be negligent, younger boys and boys with less intelligence would not be. And the question of negligence is, in nearly all cases, one of fact for the jury, whether the person charged with negligence is of full age or not. But while the courts have given little direct attention to the element of age, and have fixed upon no particular age as one to which the turntable doctrine shall or shall not be applicable as a matter of law, an age limit may be inferred with reasonable assurance, though of course the nature of the instrumentality is to be taken into consideration, for a child of any particular age may appreciate the peril of one thing but not of another. Some perils, such for example as fire or open water, must be obvious even to the most immature intellect. On the other hand, seldom will a recovery be allowed for injuries to boys of fourteen, thirteen, or even twelve years of age, unless they are shown to have been of inferior intelligence. The truth of the matter seems to be that the turntable doctrine furnishes justification for a recovery by children who have gotten old enough to go about unattended but are yet unaware of the perils embodied by machinery and other instrumentalities of an artificial nature — the period between the ages of five and ten." 20 R. C. L. 87, § 77.

See, also, Id. § 80.

The cases seem to fully sustain the statements of the text above quoted, and in practically every statement of the rule of liability it is grounded upon the duty owed to children of "tender years," whose imprudences are usually due to the play of childish instincts, unenlightened by experience, and unrestrained by reason. See note to Barnes v. Shreveport City R. R. Co., 49 Am. St. Rep. 417, 418. In his note to Westbrook v. Mobile, etc., R. Co. (Miss.) 14 Am. St. Rep. 595, Judge Freeman remarks that the rule of the "turntable cases" has been applied by the courts in many of the states "to children from five to twelve years of age." And in Belt Ry. Co. v. Charters, 123 Ill. App. 322, 329, it was said that —

"An examination of the 'attractive nuisance' cases will show that in nearly every instance the child injured was less than ten years of age and incapable of exercising ordinary care."

In the well-considered case of Heasley v. Winona St. P. R. Co., 46 Minn. 233, 48 N.W. 1023, 24 Am. St. Rep. 220, 223, in upholding and applying the rule of liability, the court said:

"But nothing more than ordinary or reasonable care is required of persons who have placed upon their own premises such dangerous machinery as turntables, attractive, alluring, and open to children of tender years, strictly non sui juris."

In the case of Shaw v. C. A. R. R. Co. (Mo. Sup.)184 S.W. 1151, which was not a turntable case, the court said:

"It would be a very exceptional state of facts which would render the doctrine of attractive nuisances applicable to a strong, active, healthy, and intelligent girl 15 1/2 years old. The industry of counsel has unearthed one case applying the doctrine to a 14 year old boy. That case was exceptional in its facts. Biggs v. Wire Co., 60 Kan. 217, 56 P. 4, 44 L.R.A. 655 [reviewed in note, 19 L.R.A. (N.S.) 1165]. A part of the doctrine, the basis of it, is that the injured person is of such tender years that the 'attractive nuisance' would so appeal to childish impulses as, in a sense, to constitute an invitation, and that such appeal should be foreseen and care taken to prevent evil consequences. We are of the opinion appellant is not shown to be within the class to which the doctrine applies."

In Pollard v. Oklahoma City R. Co., 36 Okl. 96, 128 P. 300, Ann. Cas. 1915A, 140, the court said:

"The Justes boy, being past 14 years of age, and a trespasser on the company's premises, was, judging solely from his testimony as shown by the record, not entitled to the protection of that law which requires owners of premises to use care in keeping the same in safe condition on account of the unreasoning and natural impulses of children of immature years who may happen to enter thereon, either as trespassers or invitees."

In the note to Thompson v. B. O. R. Co., 218 Pa. 444,67 A. 768, 120 Am. St. Rep. 897, 11 Ann. Cas. 894, 19 L.R.A. (N.S.) 1162, 1165, the editor says:

"No age has been determined in the attractive nuisance cases at which the court can say, as a matter of law, that the doctrine is inapplicable. It must, however, in any case, be the age at which the child is capable of contributory negligence." (Italics ours.)

We think this is the correct view of the matter, deducible from the nature of the duty prescribed, and from the necessities of the class for whose benefit the law has raised the duty. Certainly it is in accord with the general consensus of judicial opinion, and it is almost conclusively significant that among all the reported cases we do not find a single instance in which the doctrine of the turntable cases has been applied to, or even invoked by, a child who has passed the age of 14; for the absence of such instances would seem to indicate either a general implicit understanding that youths of 14 and over are not children of "tender years," or else that at that age they are no longer subject to the domination of childish instincts, and do not need the protection of the rule — so far, at least, as turntables are concerned.

While we would not determine the question upon the narrow basis of verbal definition, it is not amiss to notice that the word "child," in legal phraseology, as well as in common understanding, is most usually applied to one under the age of puberty, or not old enough to dispense with maternal aid and care. 11 Corp. Jur. 756, § 3, and authorities cited; Collins v. State, 97 Ga. 433, 25 S.E. 325, 35 L.R.A. 501; Bell v. State,18 Tex. App. 53, 56, 51 Am. Rep. 293. In the latter case in defining the word "child" as used in a statute punishing an aggravated assault upon a child, the court said:

"It means a young person as contradistinguished from one of age sufficient to be supposed to have settled habits and fixed discretion. Mr. Webster defines the word 'boy' to mean 'a male child from birth to the age of puberty.' * * * As the law now stands, we believe that the age of 14 in boys and 12 years in girls, limits the age of childhood."

Without going so far as this, it seems clear that a "child of tender years" cannot be one who is more than 14 years of age. In this state it is the settled rule that after the age of 14 all infants are prima facie presumed to be capable of the exercise of judgment and discretion, and are therefore subject to the law of contributory negligence when they seek to recover for personal injuries. Lovell v. De Bardeleben C. I. Co.,90 Ala. 13, 7 So. 756; B. R. L. P. Co. v. Landrum, 153 Ala. 192,45 So. 198, 127 Am. St. Rep. 25; B. A. Ry. Co. v. Mattison, 166 Ala. 602, 52 So. 49; Cedar Creek Store Co. v. Stedham, 187 Ala. 622, 65 So. 984; Indian Ref'g Co. v. Marcrum, 205 Ala. 500, 88 So. 445; So. Exp. Co. v. Roseman,206 Ala. 681, 91 So. 612.

In Cedar Creek Co. v. Stedham, supra, speaking of children under 14 years of age, it was said:

"Such a child may not, however — and he is rebuttably presumed by the law not to — possess that maturity of discretion which dictates those precautions against the dangers of fire that are conclusively presumed by the law to belong to normal children who are 14 years of age. * * * If such a child, a child between 7 and 14 years of age and not possessing that discretion and maturity of judgment which the law conclusively presumes a normal child of 14 years of age to possess, is injured through the actionable negligence of another, such a child is entitled to recover, although his own carelessness proximately contributed to his injury."

On the foregoing considerations and authorities, we hold that, as a matter of law, the plaintiff in this case was not within the class to whom defendant owed the duty invoked, and therefore is not entitled to recover as for a violation of that duty.

It results that the general affirmative charge should have been given for defendant as requested, and for its refusal the judgment will be reversed, and the cause remanded.

Reversed and remanded.

ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.