Nashville Lumber Co. v. Busbee

WOOD, J., (after stating the facts). First: Appellee, as administrator of the estate of his minor son, deceased, and for the sole benefit of the estate, instituted this action against appellant. He seeks to recover damages for the conscious suffering of his intestate caused by personal injuries which resulted in the latter’s death, and which appellee alleges were produced by the negligence of appellant. Conceding the contributory negligence of appellee, can such negligence be pleaded in defense to the action where appellee is the sole beneficiary and distributee of the estate? This is the question presented by the demurrer. In Wolf v. Railway Company, 55 Ohio St., at p. 533, the court says: “ In those States like Virginia, Louisiana, Iowa, and perhaps others, in which the damages arising from the wrongful death survive and become a part of the estate of the deceased, and are inherited from the estate by the named beneficiaries as heirs, the contributory negligence of such heirs does not constitute a defense to an action brought by an administrator for the recovery of such damages, because the damages are part of the estate, and the estate is cast upon the heirs by operation of law. An estate will vest in the heir and be cast upon him by operation of law, even though the heir wrongfully caused the death of the ancestor for the purpose of obtaining the estate.” Conceding that Mack Busbee was injured through the wrongful act of appellant, whatever suffering he endured, as a result, between the time of his injury and death, was to him a cause of action for damages, which, at his death, survived and could be recovered by his personal representatives for the benefit of the estate of Mack Busbee. Section 6285, Kirby’s Dig.; Davis v. Railway, 53 Ark. 117. These damages belonged to the estate of Mack Busbee. Appellee, as the sole distributee of that estate, acquires his interest in it as heir under the law of descents and distributions. Section 2636, subdiv. 2, Kirby's Dig. Contributory negligence of the father cannot be imputed to his infant son, so as to defeat the right of the latter to recover during his life (Railway Company v. Rexroad, 59 Ark. 180), and at his death the estate of the infant acquired by devolution precisely the same rights that he had during life. St. Louis, I. M. & S. Ry. Co. v. Dawson, 68 Ark. 1; Davis v. Railway, supra. The contributory negligence of the father of the intestate can not defeat his personal representative from recovering what belonged to the estate. See Miles v. St. Louis, I. M. & S. Ry. Co., 90 Ark. 485. Indeed, the contributory negligence of the father can not be raised in an action by the personal representative to recover damages that belonged to the estate. The only issue in such case is, should the estate recover? The distribution of the assets after recovery is a matter for another tribunal. Kirby’s Dig., § § 110, 160; State v. Roth, 47 Ark. 225; McDerman v. Martin, 38 Ark. 261. In other jurisdictions, in similar actions founded upon similar statutes, the rule is as above announced.. Westerfield v. Lewis, 9 So. Rep. 52 (La.); Wymore v. Mahaska County, 78 Iowa 396; Norfolk & W. R. Co. v. Groseclose’s Admr., 88 Va. 267. See also Warren v. Manchester St. Ry., 47 Atl. Rep. 735 (N. H.) The rule, of course, is quite different where the personal representative sues for the benefit of the father, or the father sues for his own benefit, as next of kin, for the damages accruing at, and by reason of, the death of his infant son under section 6289, Kirby’s Dig. In such cases the contributory negligence of the father is a defense. St. Louis, I. M. & S. Ry. Co. v. Dawson, 68 Ark. supra. Although the exact question here was not before the court in that case, since the father, as administrator, was suing both for the benefit of the estate and for his own benefit, yet Judge Riddick recognizes the distinction between the two classes of cases and the rule growing out of it. For he says: “While the negligence of the parent will not be imputed to the child, and the administrator of its estate, if dead, may recover damages for pain and suffering caused by negligence of defendant, notwithstanding the parent himself was guilty of negligence contributory to the injury, yet the rule is different when the parent sues, not for the estate but for his own benefit.” An examination of the cases from other jurisdictions will discover that contributory negligence of the parent has been allowed as a defense, generally, only in actions founded upon statutes similar to sections 6289-90 of Kirby’s Dig. (Lord Campbell’s Act.) These statutes create a right of action growing out of the death of the party injured by the wrongful act of another. The right does not exist till the death occurs. It accrues then, and is for the damages sustained by the next of kin — the pecuniary loss to them — as a result of the death of the person injured. In cases based upon such statutes the administrator “acts as trastee for those upon whom the statutes confer the right of recovery.” He does not in such cases represent and sue for the estate of the deceased, but solely for the pecuniary benefit of those having the right of action under the statute. Sections 6289-90, supra; Davis v. Railway, supra. Hence, the doctrine that one shall not be allowed to profit by his own negligence should be, and has been, applied in such cases. O’Shea v. Lehigh Valley Railroad Company, 79 N. Y. App. Div. 254; Air Line Ry. Co. v. Gravitt, 93 Ga. 369; Smith v. Hestonville, Montana & Fairmount Passenger Ry. Co., 11 Pa. St. 450; Wolf v. Lake Erie & W. R. Co., 55 Ohio St. 517, S. C., 36 L. R. A. 812; Chicago v. Major, 18 Ill. 349; Chicago City Ry. Co. v. Wilcox, 138 Ill. 370; Pekin v. McMahon, 154 Ill. 141, 153; Bamberger v. Citizens Street Ry. Co., 95 Tenn. 18. In the last case, it is said: “Necessarily, the peculiar provisions of the statute must exercise an important, if not controlling, influence in the decisions of each State.” The court in Bamberger v. St. Ry. Co., supra, further says: “The right is not strictly a descendible or inheritable right, but one arising out of the special statute, and, as to its scope, is governed by the statute.” The case of O’Shea v. Ry. Co., supra, also recognizes the difference between the statutes under which the suit was brought in that case and statutes like those under consideration. The Court of Appeals (N. Y.) quotes the same language from Wolf v. Ry. Co., as quoted by us in the beginning of this opinion. In Air Line Ry. Co. v. Gravitt, supra, it is said: “The sounder view is that entertained by the courts of Iowa and Virginia.” Our conclusion is that where the right - of the parent is derived from the child by inheritance under the statutes (sections 2686,6285, Kirby’s Dig.) contributory negligence is not a defense. To so hold is not, as some text writers and judges loosely express it, magnifying form above substance, but rather is it carrying out the law as it is written. If the result is to confer an undeserved benefit upon one whose negligence has been partly instrumental in producing the estate sought to be recovered, that is a matter for the Legislature to deal with, but not for the courts. See Wymore v. Mahaska County, 78 Iowa 396. The court, therefore, did not err in sustaining the demurrer to the paragraphs of the answer setting up, as a defense, the contributory negligence of the appellee, nor in excluding evidence tending to show contributory negligence on the part of appellee. Second: In Lynch v. Nurdin, Eng. Com. L. Rep. 1 Ad. & Ellis (N. S.), 422, the plaintiff, a child seven years old, in play, got upon a cart that the defendant had negligently left unattended in the street, another child led the horse on, and the plaintiff was thereby injured. In holding that the plaintiff, though a trespasser, could recover, Lord Denman, speaking for the Court of Queen’s Bench, among other things, said’: “But the question remains, can the plaintiff here, consistently with the authorities, maintain his action, having been at least equally in fault? The answer is that, supposing that fact •ascertained by the jury, but to this extent, that he merely indulged the natural instinct of a child in amusing himself with the empty cart and deserted horse, then we think that the defendant cannot be permitted to avail himself of that fact. The most blamable carelessness of his servant having tempted the child, he ought not to reproach the child for yielding to that temptation. He has been the real and only cause of the mischief. He has been deficient in ordinary care; the child, acting without prudence or thought, has, however, shown these qualities in as great a degree as he could be'expected to possess them. His misconduct bears no proportion to that of the defendant which produced it. For these reasons we think that nothing appears in the case which can prevent the action from being maintained. It was properly left to the jury, with whose opinion we fully concur.” The above case was cited in 1873 by the Supreme Court of the United States in Railroad Company v. Stout, 17 Wall. 657, and is the basis for the doctrine of that case. In- the latter case the defendant left its turntable in an open space, unattended or unguarded by any servant of the company. It was not locked or fastened, and revolved easily on its axis. The plaintiff, a boy six years of age, and two companions, respectively nine and ten years of age, went to the turntable to play. Two of the boys began to turn it, and the plaintiff, in attempting to get upo"n it, was injured. The Supreme Court of the United States, following the doctrine of Lynch v. Nurdin, supra, held that the plaintiff could recover, notwithstanding he was a trespasser. The court, among other things, says: “If, upon any construction which the jury was authorized to draw from it, the conclusionof negligence can be justified, the defendant was not entitled to this order [directed verdict in its favor], and the judgment cannot be disturbed. To express it affirmatively, if from the evidence given it might justly be inferred by the jury that the defendant in the construction, location, management, or condition of its machine had omitted that care and attention to prevent the occurrence of accident which prudent and careful men ordinarily bestow, the jury was at liberty to find for the plaintiff. 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, that existed with reference to all children. When the jury learned from the evidence that he had suffered a serious injury by his foot being caught between the fixed rail of the roadbed and the turning rail of 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 there, on other occasions, and within the observation and to the knowledge of the employees of the defendant, the jury were 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 in 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 doctrine announced in Lynch v. Nurdin, supra, because it has -been frequently applied by the Supreme Court of the United States, and other courts in this country, in “turntable cases,” is often called the doctrine of the “turntable cases,” but it is a general rule, and is applicable not alone to turntables, but to machinery,, instrumentalities, appliances, or conditions of any kind that are dangerous, and yet calculated to entice children, who may be too young to know of their dangerous character. As was said by the Supreme Court of Minnesota in Matson v. Minn. & N. W. Rd. Co., 95 Minn. 477: ‘ ‘ The rule is intended for the protection of children of tender age, who from immaturity are incapable of exercising a proper degree of care for their own protection.” Mr. Beach, in his work on Contributory Negligence (§ 141), says that the Supreme Court of Massachusetts “is the only court in this country that has not affirmed Lynch v. Nurdin.” The Supreme Court of Iowa, in Edgington v. Burlington, C. R. & N. Ry. Co., 116 Ia. 410, after quoting the above statement of Mr. Beach, adds: “Our own investigation tends to confirm the assertion although in some States the principle involved has been obscured by inconsistent decisions.” Then, after citing a vast array of authorities from many States, the Supreme Court of Iowa continues as follows: “None of the many precedents we have above cited are turntable cases, and in nearly every instance the injured person was a technical trespasser. They unite, however, in giving vigorous expression to the rule that whether the attractive character of the danger and its unguarded condition are to be construed as an implied invitation to the child to enter upon the property of another, or whether such use of one’s own property is a violation of the fundamental doctrine requiring the owner to have a care that his neighbor suffers no harm at his hands, no man, even upon his own premises, may rightfully expose to the approach of young children a temptation which is likely to attract then! into danger, without using care to avoid their injury. It by no means follows that a property owner is an insurer of the safety of the children who come upon his premises. His obligation is simply that which attaches to every member of society when he undertakes to exercise a personal right in a manner which may affect the welfare or safety of another member — the obligation of reasonable care. Discharging that obligation, he has done his duty, and assumes no liability, whatever happens;’but, failing therein, he is justly responsible for the effects of his negligence.” The rule announced in Lynch v. Nurdin, or what is called the "turntable doctrine,” or the doctrine of the “turntable cases,” is sound in principle, and is supported by the great weight of authority in this country. In addition to authorities cited in Edgington v. Burlington, C. R. & N. Ry. Co., supra, see Keffe v. Milwaukee, etc., R. Co., 21 Minn. 207; Kansas Cent. Ry. Co. v. Fitzsimmons, 22 Kan. 686; Evansich v. Gulf, etc., R. Co., 57 Tex. 126; Koons v. St. Louis, etc., R. Co., 65 Mo. 592; Williams v. Kansas City, etc., R. Co., 96 Mo. 275; Barrett v. So. Pac. Co., 91 Cal. 296. The doctrine was recognized and -approved by this court in Brinkley Car Co. v. Cooper, 60 Ark. 545, where Judge Riddick, speaking for the court, said: "The owner of land is not required to provide against remote, and improbable injuries to children trespassing thereon, but h'e is liable for injuries to children trespassing upon his private grounds when it is known to him that they are accustomed to go upon it, and that from the particular nature and exposed and open condition of something thereon, which is attractive to children, he ought reasonably to anticipate such injury to children as that which actually occurs.” See same case in 70 Ark. 335. (Brinkley Car Co. v. Cooper.) Again in quite a recent case, St. Louis & San Francisco R. Co. v. Williams, 98 Ark. 72, the Chief Justice, speaking for the court, after stating the general rule as to trespassers, says: "What is known as the doctrine of the ‘turntable cases’ forms an exception to the rule.” And then he succinctly states the rule of the “turntable cases” as follows: “Where an owner permits to remain unguarded on his premises something dangerous which is attractive to children and from which an injury may reasonably be anticipated,” he may be liable; quoting from Brinkley Car Co. v. Cooper, as set out above. Under the doctrine of Lynch v. Nurdin, or the doctrine of the “turntable cases,” it was for the jury to determine whether the machinery was dangerous and known to be such because it was attractive to and known to be frequented by children, and whether the appellant was guilty of negligence in leaving the machinery uncovered and unprotected. “Whether or not premises are sufficiently attractive to entice children into danger, and to suggest to the defendant the probability of accident, is a matter to be determined by the jury.” 29 Cyc. 686; Brinkley Car Co. v. Cooper, supra. It is also usually a question for the jury as to whether or not the injured child has sufficient mental capacity to know and appreciate the dangerous character of the machinery. In other words, it is generally a question for the jury to determine, considering the mental capacity of the child, as to whether or not it is guilty of contributory negligence in coming in contact with the dangerous agency by which it is injured. Westbrook v. Mobile, etc., R. Co., 14 Am. St. and note, 587. See St. Louis, I. M. & S. Ry. Co. v. Sparks, 81 Ark. 187; 3 Elliott, on Railroads, § 1261. Even though a child of tender years may be warned of the danger, it is still a question for the jury as to whether the child, considering its age and intelligence, had sufficient mental capacity to appreciate the danger after such warning. Without discussing the instructions seriatim, we are of the opinion that the court correctly announced the law applicable to the facts assembled in this record. Taking the instructions as a whole, they presented the. questions of neglR gence and contributory negligence to the jury in accord with the principles herein announced. The jury could have found from the evidence that the appellant left the sprocket wheel and chain that killed young Busbee in an open space, unguarded and exposed in such a manner that children who were in the habit of congregating there for play or to get kindling wood might easily come in contact with them; that there was no one at work on the outside of the box factory where the sprocket wheel was situated; that children in crowds, from three or four to a dozen, were in the habit of assembling there for such purpose; that shavings sevéral times were piled around the sprocket wheel so that it could not be seen; that the chain running over the sprocket wheel would gather strings and carry them around with it; that Mack Busbee was run out of the lumber shed and box factory, and warned to keep off of the conveyor chain, and off the premises and away from the machinery because it was dangerous, but that he did not heed the warning and stay away, that he was not warned specifically of the danger of coming in contact with the sprocket wheel; that the chain and sprocket wheel on the outside of the building could have been made safe by being inclosed, or boarded in, at an expenditure of from $2.50 to $20.00; that this could have been done without interfering with the practical operation of the machinery; that Mack Busbee at the time of his injury was between seven and eight years of age; that appellant was fully cognizant of all these facts. Therefore, we are of the opinion that the facts presented a case for the application of the doctrine of Lynch v. Nurdin and that there was evidence to sustain the verdict and judgment and the court did not err in refusing to instruct a verdict for appellant. It Was a question for the jury. Third: It is contended that the court erred in not permitting appellant to prove by certain witnesses, employees of appellant, that they notified appellee “to keep decedent away from the' machinery; that’he was in danger.” Conceding that the appellant properly reserved its exceptions to the ruling of the court in excluding this testimony and that the testimony was competent, its only effect, and the only purpose of appellant in offering it, was to show that appellee was guilty of contributory negligence, and that young Busbee was upon appellant’s premises without its consent and contrary to the instructions it had given his father to keep him away, in other words, that he was a trespasser. That was the theory upon which appellant tried its case below. But, as we have seen, the doctrine of Lynch v. Nurdin applies for the protection of children who are trespassing as well as those who are not. There was abundant evidence to prove that Mack Busbee was a trespasser. That fact is conceded. The ruling of the court in excluding the above testimony was not prejudicial. See Cook v. Houston Direct Nav. Co., 76 Tex. 353; Barrett v. S. Pac. R. R. Co., 91 Cal. 296; Price v. Atchison Water Co., 58 Kan. 551. Fourth: The appellant offered to prove by witness Wiley that he had run decedent off the chain several times before he was killed. Conceding that the offered testimony was competent, the court did not err in excluding it. The testimony was but cumulative of the testimony of several other witnesses that showed that young Busbee had been frequently driven off of the chain. There could be no prejudicial error committed in not permitting, or in excluding, testimony that tended only to establish a fact that had been proved conclusively by other testimony. As stated above, there was no doubt that young Busbee was a trespasser, and no doubt that he had repeatedly been warned of the danger of the machinery. This was abundantly established by undisputed testimony that was admitted. Nevertheless, the question of his contributory negligence under the circumstances was for the jury, and was properly submitted. Affirmed. Hart and Kirby, JJ., dissenting.