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Stout v. Sioux City & Pacific Railroad Company.

ance is made and set aside at the instance of the assignee, the husband or head of the family is not estopped to set up the right to a homestead exemption: Cox v. Wilder, ante, p. 45. To that view I still adhere.

I am of opinion that the right to the exemption has not been lost by delay. When the assignee applied for an order to sell the property, it was competent for the husband to resist it, as he did, on the ground that the property was his homestead and exempt as such.

The petition for review is dismissed.

PETITION DISMISSED.

NOTE.-Cox v. Wilder, ante, p. 45, and cases cited in note; In re Cross post, and note.

HARRY G. STOUT, by his next friend, v. SIOUX CITY & PACIFIC RAILROAD COMPANY.

1. Under certain circumstances, a railroad company may be liable, on the ground of negligence, for a personal injury to a child of tender years in a town or city, caused by a turn-table, built by the company upon its own uninclosed land, and which is left unguarded and unlocked in a situation which renders it likely to cause injury to children. 2. Negligence defined, and the necessary elements of such a liability in respect to unguarded and unlocked turn-tables stated.

(Before DILLON and DUNDY, JJ.)

Negligence.-Liability of a Railroad Company for an Injury to a Child, caused by an Unguarded and Unfastened Turn-table.

THIS is an action by an infant, by his next friend, to recover damages for a personal injury, caused by the turn-table of the defendant. The material facts appear in the charge of the court to the jury, given below.

Wakeley & Strickland, for the plaintiff.

N. M. Hubbard and Isaac Cook, for the defendant.

Stout v. Sioux City & Pacific Railroad Company.

DILLON, Circuit Judge.-1. This is both a novel and important case. The injury for which this action is brought happened in the town of Blair, in this state, on the 29th day of March, 1869. The plaintiff was then a boy of the tender age of six years and two or three months. The undisputed testimony shows that the town of Blair was, at that time, a new place, had been recently laid off, and contained a population of about one hundred people. On the plat of the town of Blair is a tract of land of variable width, extending almost the entire length of the plat, owned and used by the defendants for their road-bed and depot grounds, and which divides the town into two portions. The cross streets of the town run up to this railroad ground and there stop, with exception of one or two streets, which were laid out across it. On this ground, which was not enclosed, was situated the defendant's depot house, and, about one-quarter of a mile distant from the depot house was located the turntable, on which the plaintiff was injured. There were but few houses in the immediate neighborhood of the turn-table, and the plaintiff's parents lived in another portion of the town, and about three-fourths of a mile distant from the turn-table.

The circumstances under which the accident to the plaintiff occurred are not in the main, if in any respect, in dispute. The plaintiff, without, as it appears, the knowledge of his parents, started with one or two other boys to go to the defendant's depot, about half a mile away, with no definite purpose in view. When the boys had arrived at the depot, it was proposed by some of them to go to the turntable to play; and the boys proceeded to the turn-table, about a quarter of a mile distant, traveling along the defendant's road-bed or track. When the boys had reached the turn-table, which was not attended or guarded by any employe of the company, and which was not then fastened

Stout v. Sioux City & Pacific Railroad Company.

or locked, and which revolved easily on its axis, two of them commenced to turn it, and the plaintiff, in attempting to get upon it (being at the time upon the railroad track), had the misfortune to get his foot caught between the end of the rail on the turn-table, as it was revolving, and the end of the iron rail on the main track of the defendant's road, and his foot was badly cut and crushed, resulting in a serious and permanent injury.

There is the evidence of one witness (Quimby), then an employe of the company, that he had previously seen boys playing at the turn-table, and had forbidden his children to play there. But this witness had no charge of the turntable, as he says, and did not, as he testified, communicate the fact to any of the officers or employes of the company having charge of the turn-table. It appears, from the plaintiff's testimony, that he had not before that day been engaged in playing at the turn-table. The turn-table was constructed on the defendant's own land, and the testimony tends to show that it was constructed in the usual and ordinary manner.

2. Now the ground of complaint against the defendant, as set out in the petition, is that the turn-table, as it was constructed, was of a dangerous nature and character, when unlocked or unguarded, and that being, as it is alleged, in a place much resorted to by the public, and where children were wont to go and play, it was the duty of the defendant to keep the same securely locked or fastened, so as to prevent it from being turned or played with by children, or to keep the same guarded, so as to prevent injuries such as befel the plaintiff.

The basis of this action, therefore, is that the defendant owed the plaintiff a duty of this kind; that, in failing to discharge this duty, the defendant was guilty of negligence; that this neglect caused the injury to the plaintiff, and that, therefore, the defendant is liable in damages therefor.

Stout v. Sioux City & Pacific Railroad Company.

Now, if this action had been brought, under the circumstances disclosed in the evidence, by an adult, who, himself, meddled with and set in motion the turn-table which caused the injury, we should have no hesitation in saying that the law would not allow it to be maintained. And we confess that we have had serious doubts whether, under the circumstances, the action was any more maintainable, being brought by an infant of tender years.

On reflection it is our judgment, and we so instruct you, that this action may be maintained, if certain facts be established by the evidence.

In the first place, it is alleged in the petition, and it must appear by the evidence, that this turn-table, in the condition, situation, and place where it then was, was a dangerous machine, one which, if left unguarded or unlocked, would be likely to cause injury to children. You have heard described the manner in which this turn-table was constructed and left, and very much evidence has been adduced to show that turn-tables are constructed and left in this manner elsewhere; and the evidence is quite undisputed that it is not the practice of railroads to guard or lock them. The circumstance that other roads throughout the country do not guard or fasten turn-tables (if you find such to be the fact), is not conclusive in the defendant's favor that there was or could be no negligence on its part as respects the turn-table in question, but, while not conclusive, it is still a very important fact or circumstance to be considered by the jury in determining the question of the defendant's negligence.

This action rests, and rests alone, upon the alleged negligence of the defendant, and this negligence consists, as alleged, in not keeping the turn-table guarded or locked. Negligence is the omission to do something which a reasonable, prudent man, guided by those considerations which

Stout v. Sioux City & Pacific Railroad Company.

ordinarily regulate the conduct of human affairs, would do; or doing something which a prudent or reasonable man would not do, under all the circumstances surrounding the particular transaction under judicial investigation.

If the turn-table, in the manner it was constructed and left, was not dangerous in its nature, then of course the defendants would not be guilty of any negligence in not locking or guarding it. But even if it was dangerous in its nature in some situations, you are further to consider whether, situated as it was on the defendant's property, in a small town, and distant or somewhat remote from habitations, the defendants are guilty of negligence in not anticipating or foreseeing, if left unlocked or unguarded, that injuries to the children of the place would be likely to or would probably ensue.

The machine in question is part of the defendant's road, and was lawfully constructed where it was. If the railroad company did not know, and had no good reason to suppose, that children would resort to the turn-table to play, or did not know, or had no good reason to suppose, that if they resorted there, they would be likely to get injured thereby, then you cannot find a verdict against them.

But if the defendant did know, or had good reason to believe, under the circumstances of the case, the children of the place would resort to the turn-table to play, and that if they did they would or might be injured, then, if they took no means to keep the children away, and no means to prevent accidents, they would be guilty of negligence, and would be answerable for damages caused to children by such negligence. Counsel for the defendant disclaim resting their defense on the ground that the plaintiff's parents were negligent, or that the plaintiff (considering his tender age) was negligent, but rest their defense upon the ground that the company was not negligent, and claim that the injury

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