by John Marshall Harlan

“ The defendant being guilty of negligence, your next inquiry will be whether the plaintiff was guilty of any such negligence as will prevent him from recovering, for it is a principle of law that one injured by the negligence of another cannot recover damages for such injury, if, by his own negligence, he contributed to the injury. ”

“ And although, in the case of injury to persons by reason of the same default, the failure to fence is not, as in the case of animals, conclusive of the liability, irrespective of negligence, yet an action will lie for the personal injury, and this breach of duty will be evidence of negligence. ”

“ The slightest regard for the safety of these children would have suggested that they were in danger from being so near a pit, beneath the surface of which was concealed (except when snow, wind, or rain prevailed) a mass of burning coals, into which a child might accidentally fall and be burned to death. Under all the circumstances, the railroad company ought not to be heard to say that the plaintiff, a mere lad, moved by curiosity to see the mine, in the vicinity of the slack pit, was a trespasser, to whom it owed no duty, or for whose protection it was under no obligation to make provision. ”

“ He said: 'The legal proposition that one who has by his own negligence contributed to the injury of which he complains cannot maintain his action against another, in respect of it, has received some qualifications. Indeed, Lord Ellenborough's doctrine in Butterfield v. Forrester, 11 East, 60, which has been generally adopted since, would not set up the want of a superior degree of skill or care as a bar to the claim of redress. 'Ordinary care' must mean that degree of care which may reasonably be expected from a person in the plaintiff's situation ”

“ It appears to us that a man who leaves in a public place-along which persons, and amongst them children, have to pass-a dangerous machine, which may be fatal to any one who touches it, without any precaution against mischief, is not only guilty of negligence, but of negligence of a very reprehensible character, and not the less so because the imprudent and unauthorized act of another may be necessary to realize the mischief to which the unlawful act or negligence of the defendant has given occasion.'
We adhere to the principles announced in Railroad Co. ”

“ A narrow, rough, uneven footpath to the coal mine extended from the depot building, over the railroad tracks, and close to a slack pit or trench. In working the mine, the company's agents and employes had deposited along and close by the track, between the shaft house of the coal mine and the depot building, a very large quantity of coal slack, which extended up and down the track. The slack was piled up so as to generate heat, and cause it to take fire underneath by spontaneous combustion, and was not spread out in thin layers upon the surface of the ground. ”

“ The law made it the duty of the defendant to fence its slack pit, and if it did not do so, and, as a result of its negligence in failing to comply with its legal duty in this regard, the plaintiff received the injuries complained of, the defendant is liable. Persons are entitled to the protection which would accrue from a compliance with the statute, and the plaintiff had a right to presume the space between the railroad tracks was not a burning slack pit, because it was not fenced. ”

“ If they leave exposed to the observation of children anything which would be tempting to them, and which they, in their immature judgment, might naturally suppose they were at liberty to handle or play with, they should expect that liberty to be taken. ”

“ If the railroad company did not know, and had no good reason to suppose, that children would resort to the turntable 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. ”

“ Stout the principal question was whether a railroad company was liable for an injury received by an infant while upon its premises from idle curiosity, or for purposes of amusement, if such injury was, under the circumstances, attributable to the negligence of the company. The facts in that case were these: The railway company owned and used for its roadbed and depot grounds a tract of uninclosed land in the town of Blair, Neb., upon which the company had its depot house, a quarter of a mile from which was a turntable belonging to it. ”

“ 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 upon the turntable upon other occasions, and within the observation and to the knowledge of the employes 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. ”

“ All owners of lands having abandoned coal pits or shafts on the same, of sufficient depth to endanger the life of cattle, horses, or other stock, shall fence or fill said pits or shafts in such a manner as to afford permanent protection to all such stock endangered thereby. ”

“ Wathen, 9 East, 277, 279, it was held that if a man place dangerous traps, baited with flesh, in his own ground, so near to a highway, or to the premises of another, that dogs passing along the highway, or kept in his neighbor's premises, would probably be attracted by their instinct into the traps, and in consequence of such act his neighbor's dogs be so attracted and thereby injured, an action on the case would lie. ”

“ That he helped carry him to the hotel, the boy not being able to walk. That at the time of the accident there was nothing to indicate that there was any fire there. That a man who had never seen it would walk right in it, would not know there was any fire. Nothing but brown ashes. Came up within forty feet of the depot. Children used to go around there at all hours of the day; some to get coal, others to bring their father's dinner, and some would go over just to see the place. And this condition of affairs was so allowed or conducted during all the time witness was there. ”

“ The defendant's superintendent went to the box in the shed for dynamite and exploders as he had occasion to use them. The evidence also tended to show that the handling of the exploders by persons who were ignorant of their nature, or were careless, or under circumstances rendering them liable to accidental concussion, would be exteremely hazardous. ”

“ He says those are not elements enough, and that, in addition, you should award him damages as a punishment to this defendant for not having complied with the statute. That you cannot do, gentlemen. That claim is not supported by the law. It is, moreover, in the very teeth of the statute of the state under which it is claimed, for that statute, in terms, says that the persons or the corporation neglecting to fence these slack pits shall be liable to any party injured thereby in the amount of the actual injury sustained ”