BOSTON &. M. R. R. v. BRESLIN, 80 F.2d 749

MORTON, Circuit Judge. This was an action of tort for personal injuries. There was a verdict for the plaintiff, and the defendant has appealed. The injury occurred o.n the same turntable re-, ferred to in our opinion in Tashjian v. Boston & Maine R. R., 80 F.(2d) 320, handed down on November 27, 1935. The plaintiff was about 8 years old. He was playing with other children on the defendant’s turntable. They had no right to be there, and were trespassing on the defendant’s property.

The plaintiff and his companions removed what is called an H bar, weighing about 100 pounds, which was used to lock the turntable in position. They then proceeded to put the turntable in motion. The plaintiff got down into the shallow pit in which the turntable revolves in order to assist in pushing it. While he was down there some one called out, “Here comes a man.” The plaintiff thereupon tried to climb out of the pit and was caught by the revolving turntable and injured.

As stated in the other opinion, the turntable in question is located on the defendant’s property adjacent to a public way in the thickly settled part of Stoneham, Mass.; it was visible from the street, and children frequently resorted to it and played with it; it was unquestionably a dangerous thing for children to play with, and was, or might be found to be, attractive to them. The defendant’s employees were well aware of these facts. They knew that children frequently played with the turntable, and, according, to the testimony, had made diligent efforts to prevent them from doing so.

The defendant’s witnesses testified that they had gone to parents of children found playing on the turntable, when they could learn who the parents were, and warned them of the danger; that they had made complaints about the trespassing children to the chief of police and to the authorities of the parochial school which the children attended, and had asked for co-operation in keeping the children off-'the railroad property; that they had’ put up “no trespassing” signs; that they had attempted to keep the turntable locked, but the padlocks used had been broken off almost as fast as they could be replaced; that as many as two or three locks in a week had been put on the turntable and broken off, and locks had sometimes been ordered a dozen at a time for this purpose; that the locks would be broken by the children and removed.

The accident to the Tashjian boy occurred shortly before that in which the present plaintiff was hurt. The first point urged by the defendant is that its motion to dismiss ought to have been granted; this involves a question of jurisdiction based on diversity of citizenship. The defendant is incorporated under the laws both of Massachusetts where the accident occurred and of New Hampshire where the case was tried. By the settled law of Massachusetts, children trespassing on turntables are not entitled to recover if they are injured. Daniels v. New York & N. E. R.

Co., 154 Mass. 349, 28 N.E. 283, 13 L.R.A. 248, 26 Am.St.Rep. 253 (Sept. 3, 1891); Gay v. Essex St. Ry. Co., 159 Mass. 238, 34 N.E. 186, 21 L.R.A. 448, 38 Am.St.Rep. 415; Romana v. Boston Elevated R. Co., 218 Mass. 76, 105 N.E. 598, L.R.A. 1915A, 510, Ann.Cas. 1917A, 893; Adamowicz v. Newburyport Gas Co., 238 Mass. 244, 130 N.E. 388. The “attractive nuisance” was definitely -repudiated in filie Daniels Case, supra, and that view has been consistently adhered to ever since.

For this reason the plaintiff went into New Hampshire and brought suit there, alleging that he was a citizen of Massachusetts and the defendant a citizen of New Hampshire, and that there was jurisdiction in the federal ■court by reason of diversity of citizenship. The defendant contends that on such facts there was no jurisdiction. The precise question was decided by this court more than 30 years ago m favor of jurisdiction. Boston & Maine R. R. v. Hurd, 108 F. 116, 56 L.R.A. 193 (C.C.A. 1, 1901), certiorari denied 184 U.S. 700, 22 S.Ct 939, 46 L.Ed. 765.

That case has since been accepted as establishing the law of this circuit; and while the point is not free from doubt, the decision is by no means so clearly .wrong as to require us to overrule it. The' next assignment of error to which we shall refer is that the District Judge erred in not granting the defendant’s motion for a directed verdict.

Three grounds were relied on in support of this motion: That the defendant’s liability should be decided according to the law of Massachusetts ; (2) that there was no evidence that the defendant was negligent in respect to the maintenance of the turntable; (3) that the plaintiff’s contributory negligence was established on his own testimony as a matter of law. The “attractive nuisance” doctrine is recognized as law in the federal courts. Sioux City & P. R. Co. v. Stout, 17 Wall. 657, 21 L.Ed. 745; Best v. District of Columbia, 291 U.S. 411, 54 S.Ct. 487, 78 L.Ed. 882.

The defendant contends, however, that, in cases in which jurisdiction rests on diversity of citizenship, the federal courts in determining liability in tort for negligence will ordinarily follow the law of the state where the accident occurred if that law is well settled; and that there is no reason why “turntable cases” should stand on any different or exceptional footing.

The plaintiff’s position is, that “the question is one of general, not local law.” It is well settled that ordinarily in-tort cases, in which the jurisdiction of the federal courts rests on diversity of citizenship, they will follow the law of the place where the tort was committed. Reed & Barton Corporation v. Maas (C.C.A. 1) 73 F.(2d) 359, 361, citing cases; New York Central R. Co. v. Chisholm, 268 U.S. 29, 45 S.Ct. 402, 69 L.Ed. 828, 38 A.L.R. 1048. We are not aware of any “general law” relating to liability in accident cases, as the plaintiff contends.

The nearest approach to it in the federal courts is Baltimore & O. R. Co. v. Baugh, 149 U.S. 368, 13 S.Ct. 914, 37 L.Ed, 772, and similar cases, in which it was held that an interstate carrier’s liability for accidents to its employees would be determined on general principles of common law rather than by the law of the state in which the accident occurred. Those cases rest on very different considerations from the one before us.

The plaintiff’s position really is that, whatever the law may be as to other kinds of accidents, it is settled by decisions of the Supreme Court that in “turntable cases” the lex loci will be disregarded and the federal law which recognizes the “attractive nuisance” doctrine will be applied. Six decisions involving this question have been referred to. Sioux City & P. R. Co. v. Stout, 17 Wall. 657, 21 L.Ed. 745; Union Pacific R. Co. v. McDonald, 152 U.S. 262, 14 S.Ct. 619, 38 L.Ed. 434; United Zinc & Chemical Co. v. Britt, 258 U.S. 268, 42 S.Ct. 299, 66 L.Ed. 615, 36 A.L.R. 28; Erie R. Co. v.

Hilt, 247 U.S. 97, 38 S.Ct. 435, 62 L.Ed. 1003; New York, N. H. & H. R. Co. v. Fruchter, 260 U.S. 141, 43 S.Ct. 38, 67 L.Ed. 173; Best v. District of Columbia, 291 U.S. 411, 54 S.Ct. 487, 78 L.Ed. 882. Of these the Britt, Hilt, and Fruchter Cases were decided in favor of the defendant. The Stout Case arose in Nebraska, about six years after that state was admitted into the Union, and at a time when there was no local law on the point in that case. The McDonald Case arose in Colorado. The local law is not referred to in the opinion.

The plaintiff with his mother had just alighted from a train at the defendant’s statioix. He took a path over the defendant’s land which the defendant permitted the public to tise. He strayed from the path to look at the defendant’s mine and was burned by hot slack, the danger of which was not apparent. The court held that the defendaixt, permitting the public to go on its land, to use the path and to visit its mine, and knowing that they did so, was negligent in maintaining what amounted to a dangerous trap so near the path; and that under the circumstances the plaintiff was not to be regarded as a trespasser.

There is nothing in the opinion indicating that such questions are of general, rather than of local, law. In the Hilt Case, a playing child, trespassing on the railroad yard, was injured by the sudden movement of a train. A local statute which precluded recovery in such cases was held to be controlling.

The opinion says: “The statute seemingly adopts in an unqualified form the policy of the common law as understood we believe in New Jersey, Massachusetts, and some other States, that while a landowner cannot iixtentiorxally injure or lay traps for a person coming upon his premises without license, he is not bound, to provide for the trespasser’s safety from other undisclosed dangers, or to interrupt his own otherwise lawful occupations to provide for the chance that some one may be unlawfully there.” Holmes, J., 247 U.S. 97, at page 101, 38 S.Ct. 435, 436, 62 L.Ed. 1003.

The Best Case arose in the District of Columbia, and of course no question of other than federal law was involved. There is nothing in these decisions establishing any explicit rule of law governing “turntable” or “attractive nuisance” cases. They stand on the same footing as other accidents, and are controlled by the lex loci. It was so held in this circuit more than 30 years ago in McCabe v. American Woolen Co. (C.C.) 124 F. 283, affirmed (C.C.A.) 132 F. 1006, which also held that the Stout Case was not law in Massachusetts.

We find nothing in the decisions which have since been made which requires us to overrule the McCabe Case. The judgment appealed from must be reversed, and the case remanded to the District Court for further proceedings not inconsistent with this opinion. The judgment of the District Court is vacated, the verdict is set aside, and the case is remanded to that court for further proceedings not inconsistent with the opinion; the appellant recovers costs of appeal.