Massingham v. Illinois Central Railroad

Stevens,, J. About 1913, tlie Illinois Central Railroad Company, which oAvned and operated a line of railway extending east and Avest through the city of Independence, constructed a cofferdam, a feAV feet distant from and around-a concrete abutment on the west side of the Wapsipinicon River, a short distance Avest of the city, on which one end of a steel girder bridge rested. The cofferdam- was semicircular in shape, and extended from the embankment west of the abutment- on the north side of the bridge, around the same to the embankment on the south side thereof. As we understand the record, the cofferdam Avas constructed of piles and heavy planks driven into the ground, or attached to framework extending a short distance above and into the water, making a complete and continuous inclosure. The space betAveen the abutment and the cofferdam was filled Avith water, several feet -deep, Avhich was very foul with oil and petroleum settlings. Inside of the cofferdam and about one foot from the water there was a beam, or plank, firmly attached to and extending the full length of the structure. Oii May 23, 1919, Leonard Massingham, about 8 years of age, and Leonard Ritchie, a companion somewhat older, crossed the river on the railroad bridge, crawled through the right of Avav fence on the north side of the track, which extended to Avithin a foot or 18 inches of the concrete abutment, and played for a time upon a pile of rock, north or nortliAvest of and near the cofferdam. After throAving some rocks into the river, Leonard Massingham, who had on rubber boots and rubbers over them, attempted to go around the cofferdam, on the beam above referred to, facing the abutment, and Aval king sideAArise. Before he had proceeded far, he fell forAA'ard into the water and Avas droAvned. His body was removed in about 20 minutes, but, notwithstanding the heroic efforts of a physician, with, the aid of a pulmotor, he was not revived. The plaintiff charges negligence in the construction and maintenance of the cofferdam, which, he alleges, was of a character to naturally attract children, and to appeal to' [1290] their youthful instincts, without warning guard or protection of any kind; and that the agents and servants of defendant should have known and anticipated that children would assemble in the vicinity of the bridge along the river, to- fish and for other purposes, and that they were liable to be attracted by the peculiar character of the structure, and lured to a place of danger. As our conclusion is based upon the merits, the cause of action against each of the defendants being based upon the same facts, it is unnecessary to consider or decide the question raised by the motion of the defendant railroad company to dismiss the cause of action against it. If the rilling was erroneous,, it was without prejudice. The record reveals that the railroad bridge crossing the Wapsipinicon River is located near the city of Independence, but outside of the corporate limits thereof; that there is a wagon bridge about one-half mile south, but no bridge north thereof for several miles; that the nearest dwelling house on the north side of the track is about one-half mile distant, and on the south side, about 600 or 700 feet distant; that fishermen frequently gathered along the bank of the river to fish; that on each side of the railroad track was a substantial barbed wire fence, extending within a foot or 18 inches of the abutment; that a path had been Avom from the track doAvn the north embankment to the end of the cofferdam; that children were occasionally seen in the vicinity of the bridge; and that deceased, his companion on the day of the accident, and other children, had previously, though it does not appear frequently, played around the bridge. One or two boys testified that, upon one occasion, when they were near the cofferdam, they saw some men working upon the track, one of Avhom may have been the section foreman. Neither the elevation of the bridge above the'water nor the height of the abutment is shoAvn. The attractive nuisance doctrine,, as applied in the turntable cases, Avas adopted in this state in Edgington v. Burlington, C. R. & N. R. Co., 116 Iowa 110, and has been the subject of discussion ip numerous later cases (Gregory v. [1291] Woodworth, 93 Iowa 246, Connell v. Keokuk Electric P. & R. Co., 131 Iowa 622, Brown v. Rockwell City Canning Co., 132 Iowa 631, Anderson v. Fort Dodge, D. M. & S. R. Co., 150 Iowa 465, Hart v. Mason City Brick & Tile Co., 154 Iowa 741, Wilmes v. Chicago, G. W. R. Co., 175 Iowa 101), the more recent of which are Davis v. Malvern Light & Power Co., 186 Iowa 884, and Graves v. Interstate Power Co., 189 Iowa 227. The sole question in the case before us is whether the structure complained of was of a character and so located as to come within the definition of an attractive nuisance. It was manifestly not inherently dangerous. No machinery of any kind was connected therewith. The only way a child could be injured thereby would be to fall therefrom into the water and be drowned. The structure was not in itself dangerous. It is true that children might be tempted to gratify a spirit of adventure and go upon the dam and do what deceased was doing at the time of the accident, but it is not the law that property owners having lawful structures thereon, not in their nature dangerous or capable of inflicting injury upon children of tender years, are bound to guard the same against the possibility that someone may be injured while upon or about the same. As was well stated by Mr. Justice Weaver, in Anderson v. Fort Dodge, D. M. & S. R. Co., 150 Iowa 465: “To climb trees is as natural to the average boy as to a squirrel. Such sport is always attended with danger that the climber may lose his hold or break a branch and fall, to his severe injury. Not infrequently it may bring him to an elevation where he is exposed to contact with wires carrying electric currents, of greater or less intensity. If he falls and breaks his bones, or if he receives a stunning shock of electricity; ought the owner of the tree to be held liable in damages because he did not guard it against the approach of the lad, or because he did not give notice or warning in some way of the dangers to be apprehended in climbing it? No court has ever gone to such an extent,, [1292] and the establishment of such rule would render the ownership of real estate a very undesirahle investment.” An adventuresome boy might attempt to walk across a railroad bridge upon top of a steel girder; and if he did so, and fell therefrom into the river, and was drowned, could it be said that the owner of the bridge was guilty of negligence in failing to provide guards at each end and along the girder, sufficient to prevent boys from going thereon? Certainly not. The structure complained of was •located wholly upon defendant’s right of way, and in reaching same, deceased crawled through -a substantial barbed wire fence. It was across the river from the city, in the open country, and more or less remote from any dwelling house or place where Children were accustomed to congregate. The evidence does not show that children were in the habit of frequently gathering about the structure to play, or that any agent or servant in the employ of defendant, unless upon the occasion referred to, ever saw them there. Deceased did not go upon the premises upon the invitation of the defendant, express or implied. He was, at best, a mere licensee. We are of the opinion that the doctrine contended for is not applicable to the facts in this case. This conclusion is not only in harmony with the prior decisions of this court, but in harmony with that .of courts in other jurisdictions. Coon v. Kentucky & I. T. R. Co., 163 Ky, 223 (173 S. W. 325); Hageage v. District of Columbia, 42 App. D. C. 109; Gillespie v. McGowan, 100 Pa. 144 (45 Am. Rep. 365); Schmidt v. Kansas City Distilling Co., 90 Mo. 284. The motion to direct a verdict was properly sustained. — Affirmed. .Weaver, C. J., Ladd-and Arthur, JJ., concur.