1. To warrant the direction of a verdict for the defendant on
the opening statement of plaintiff's counsel, it is not enough that
the statement be indefinite; it must clearly appear, after
resolving all doubts and uncertainties in favor of the plaintiff,
that no cause of action exists. P.
291 U. S.
415.
2. Where a wharf for unloading sand lies adjacent to a public
street from which, for want of a proper fence or barrier, its
surface may be both seen and entered, and when children of tender
years, attracted by the sand piles, are accustomed to enter and use
it as a playground, going in and out at their pleasure, the owner
is under a duty to take reasonable precautions either to prevent
such use or to keep the flooring in repair so that children will
not be exposed to the danger of falling through holes.
Railroad Co. v.
Stout, 17 Wall. 657;
Union Pacific Ry. v.
McDonald, 152 U. S. 262,
applied.
United Zinc Co. v. Britt, 258 U.
S. 268, distinguished. P.
291 U. S.
416.
62 App.D.C. 271, 66 F.2d 797, reversed.
Certiorari, 290 U.S. 619, to review a judgment affirming a
judgment for the District of Columbia entered on a directed
verdict, in an action for the death of a child, alleged to have
been caused by negligence. The verdict
Page 291 U. S. 412
was directed at the close of the opening statement by counsel
for the administrator.
Page 291 U. S. 413
MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.
Petitioner's intestate, a child 5 years of age, while playing on
a wharf belonging to the District of Columbia, fell through a hole
in the wharf and was drowned. This action was for damages for the
alleged negligence of the District. After a jury had been
impaneled, an opening statement was made by plaintiff's counsel,
and thereupon the court, on motion of the defendant and without
taking testimony, directed a verdict in defendant's favor upon the
ground that no cause of action had been stated. The Court of
Appeals affirmed the judgment, 62 App.D.C. 271, 66 F.2d 797, and
this Court granted certiorari.
Page 291 U. S. 414
The opening statement by plaintiff's counsel was as follows:
"This is a case against the District of Columbia filed by Mr.
Best as administrator for the estate of his son. The facts that we
will show you, briefly, are these, that Mr. Best's son was a child
of five years of age and that, on the day in question, he and other
children were playing down at a wharf close to where the Norfolk
boats leave for Norfolk, and this wharf was operated and controlled
by the District of Columbia; that they had there on this wharf some
boards which extended over the water, and they had in the wharf, as
several witnesses will testify, from ten to thirteen holes of
various and varying sizes; that one of the holes was quite large,
approximately 3 feet in diameter; that this place was not fenced
off; that it did have some sort of a barrier close to the street.
There was no sidewalk, but the side portion was down, and that the
children went in and out at their pleasure, and that this son of
Mr. Best went in there on this morning and while in there fell
through one of the holes in this wharf."
"That there was no one that at the time to keep the children
away, and that the watchman who was stationed arrived some time
after this occurrence; that the children used this place to play on
and play in, and that the District having maintained it in a
condition such that it was dangerous to the life and limb of these
children it is responsible for the child having been attracted
there, going in and falling through this hole. Of course, the child
died, having been drowned, and the damages that the plaintiff has
suffered as representing the estate of the child will be determined
by you in your verdict if you are convinced by a preponderance of
the evidence that we have established our case."
"That this wharf is not part of the public highway but is on
private property of the District of Columbia, and
Page 291 U. S. 415
is not a place to which the public is admitted, but is a place
where the boats dock and unload sand which is taken out and used by
the District."
There is no question as to the power of the trial court to
direct a verdict for the defendant upon the opening statement of
plaintiff's counsel where that statement establishes that the
plaintiff has no right to recover. The power of the court to act
upon facts conceded by counsel is as plain as its power to act upon
evidence produced.
Oscanyan v. Arms Co., 103 U.
S. 261,
103 U. S. 263.
The exercise of this power in a proper case is not only not
objectionable, but is convenient in saving time and expense by
shortening trials.
Liverpool, N.Y. & P. SS. Co. v.
Commissioners, 113 U. S. 33,
113 U. S. 37.
But the power is not properly exercised if the opening statement
leaves doubt as to the facts or permits conflicting inferences.
Where uncertainty arises either from a conflict of testimony or
because the facts being undisputed, fair-minded men may honestly
draw different conclusions from them, the question is not one of
law, but of fact to be settled by the jury.
Richmond &
Danville R. Co. v. Powers, 149 U. S. 43,
149 U. S. 45;
Texas & Pacific Ry. Co. v. Harvey, 228 U.
S. 319,
228 U. S. 324;
Gunning v. Cooley, 281 U. S. 90,
281 U. S. 94.
The opening statement of counsel is ordinarily intended to do no
more than to inform the jury in a general way of the nature of the
action and defense so that they may better be prepared to
understand the evidence. "If a doubt exists," said the Court in the
Oscanyan case,
supra,
"as to the statement of counsel, the court will withhold its
directions, as where the evidence is conflicting, and leave the
matter to the determination of the jury."
Plaintiff is entitled to the benefit of all inferences that may
be drawn from his counsel's statement. To warrant the court in
directing a verdict for defendant upon that statement, it is not
enough that the statement be lacking in definiteness, but it must
clearly appear, after resolving all doubts in plaintiff's favor,
that
Page 291 U. S. 416
no cause of action exists.
See Illinois Power & Light
Corp. v. Hurley, 49 F.2d 681, 684;
Stuthman v. United
States, 67 F.2d 521, 523.
The controversy in this case largely turns upon a difference of
view as to the inferences to be drawn from the opening statement.
Thus, respondent argues that there was a failure to show that "the
wharf could be seen from the public space;" that "the child was
attracted by the presence of the wharf itself, or any article or
thing which may have been upon the wharf;" that "there was any
latent or hidden danger at the place" where the child met his
death; that "there was ever a prior accident to children at or near
this wharf;" that "respondent invited or permitted petitioner's
intestate or other children to enter or play on its wharf." But,
with respect to each of these circumstances (with a single
unimportant exception), the opening statement of counsel permitted
an inference in petitioner's favor. Thus, his counsel stated that
"this place was not fenced off; that it did have some sort of a
barrier close to the street. There was no sidewalk, but the side
portion was down." From this it was not inadmissible to infer that
the wharf, without a fence and close to the street, with the side
portion of the barrier down, "could be seen from the public space"
and readily entered. According to the statement, the wharf was a
place where boats unloaded sand which was taken out and used by the
District. The inference might be drawn that the wharf had sand
piles which would be highly attractive to children. Counsel stated
that there were "ten to thirteen holes" in the wharf, of varying
sizes, one of them being about three feet in diameter. The
existence of these holes manifestly constituted a danger, and the
statement does not require the conclusion that the danger would be
obvious to young children playing in the sand on the wharf. The
fact that the opening statement did not refer to any prior accident
to children is inconsequential.
Page 291 U. S. 417
On the question whether the District permitted children to enter
and play on the wharf, counsel's statement gave basis for an
inference that children had this permission. While counsel conceded
that the wharf was "not part of the public highway," but "was on
private property of the District," and was "not a place to which
the public was admitted," he also stated that "the children went in
and out at their pleasure," and that "the children used this place
to play on and play in." He said that, at the time of the accident,
there was no one "to keep the children away," as "the watchman who
was stationed arrived some time after this occurrence." The
statement permitted the inference that, while a watchman was
customarily there, still the place was used as a playground by
children, going in and out as they pleased.
In view of the fair import of the opening statement, it was
error for the trial court to refuse to take testimony and to direct
a verdict for respondent. None of the decisions of this Court
bearing upon the liability of the District warranted that course.
The case of
United Zinc Co. v. Britt, 258 U.
S. 268, which respondent cites as controlling authority,
dealt with a situation materially different. There children were
fatally injured by going into a pool of water, poisoned by acids,
which had accumulated in the lower part of a dismantled chemical
factory, about 100 or 200 feet distant from a traveled way. The
Court stressed the facts that it was "at least doubtful whether the
water could be seen from anyplace where the children lawfully
were," that there was "no evidence that it was what led them to
enter the land," and that it did not appear "that children were in
the habit of going to the place." The decision did not overrule
Railroad Co. v.
Stout, 17 Wall. 657, or
Union Pacific Ry. Co.
v. McDonald, 152 U. S. 262,
although both were distinguished in the light of their particular
facts. The Court said that the case of
Stout,
Page 291 U. S. 418
where the child was injured on a turntable "near a road without
visible separation" and where it appeared that children had played
there before to the knowledge of employees of the railroad, was
perhaps "as strong a case as would be likely to occur of
maintaining a known temptation, where temptation takes the place of
invitation." The Court added that, in the very similar case of
Cooke v. Midland Great Western Ry. of Ireland [1909] A.C.
229, a license was implied. Also distinguishing the case of
McDonald, where a boy had fallen into burning coal slack
"close by the side of a path on which he was running homeward from
other boys who had frightened him," the Court said that
"it hardly appears that he was a trespasser and the path
suggests an invitation; at all events boys habitually resorted to
the place where he was. Also, the defendant was under a statutory
duty to fence the place sufficiently to keep out cattle."
The decision permitting recovery in those circumstances was said
to be very far from establishing liability "for poisoned water not
bordering a road" where it was "not shown to have been the
inducement that led the children to trespass" and "not shown to
have been the indirect inducement because known to the children to
be frequented by others."
In
New York, N.H. & H. R. Co. v. Fruchter,
260 U. S. 141,
where a boy, climbing to the topmost girder of a municipal bridge
and thence up a latticed tower, touched a live electric wire and
was injured, the Court was unable to find any sufficient evidence
from which a jury could properly conclude that the railroad
company, either directly or by implication, "invited or licensed"
him to climb to a point from which he could touch the bare wire
thirty feet above the street. The cases of
Erie R. Co. v.
Hilt, 247 U. S. 97, and
Erie R. Co. v. Duplak, 286 U. S. 440,
turned upon the application of a statute of New Jersey as construed
by the state court.
Page 291 U. S. 419
The question is one of negligence -- whether particular
circumstances gave rise to a duty which had not been performed.
Discussing general principles, the Court observed in the
Britt case that infants had no greater right to go upon
other people's land than adults, and that the mere fact that they
were infants imposed no duty upon landowners to expect them and to
prepare for their safety. On the other hand, it was said that,
while
"temptation is not invitation, it may be held that knowingly to
establish and expose, unfenced, to children of an age when they
follow a bait as mechanically as a fish, something that is certain
to attract them, has the legal effect of an invitation to them
although not to an adult."
The Court said that the principle, if accepted, should be very
cautiously applied. We think that the present case falls within
that appropriate application. Were the case merely one of an
accessible wharf, it could not be said that the District would be
subject to liability from the fact, without more, that a child
strayed there and fell from the wharf into the water. The duty must
find its source in special circumstances in which, by reason of the
inducement and of the fact that visits of children to the place
would naturally be anticipated, and because of the character of the
danger to which they would unwittingly be exposed, reasonable
prudence would require that precautions be taken for their
protection. Here, on the face of the opening statement, the
location of the wharf, unfenced, close to the street with the
barrier partly down, taken with the use of the wharf for unloading
sand, made it a likely place for children to play. Sand piles close
at hand would constitute "a bait" they would inevitably follow.
According to the statement, they did follow it, and they used the
wharf as a playground at their pleasure. As the authorities of the
District had reason to anticipate that use, there was a duty to
take reasonable precautions either to
Page 291 U. S. 420
prevent it or to keep the wharf in such a proper state of repair
that children would not be exposed to the danger of falling through
holes.
Judgment reversed.