*1 151 Nasello, be supra; shown under v. such indictment. State [State Carroll, 699; v. 232 392, Parr, 406, 288 Mo. S. W. State v. Mo. 246 S. W. applicable fixing section of our statute degree punishment (Sec. in R. 3984, 1929, for murder the first S. sec. p. 2788) 3984, Mo. St. Ann., says: convicted of murder “Persons degree death, imprisonment the first shall punished suffer or be penitentiary during sub their natural lives.” case was authorizing under con mitted instructions either two verdicts: one victing appellant degree, ac of murder in the first and the other quitting fixing him. This repeatedly court has held that the judicial function, punishment legislative for crime is limits when, case, punishment assessed within the this adjudged prescribed cannot be excessive. by statute it be [State Preslar, 687; Alexander, v. v. 315 Mo. 318 Mo. S. W. State sound, obviously holdings, 285 S. such Adherence to W. 984.] raised, point is ruled disposes question thus so appellant. statute, we have ex- under the compliance
Y. In with our re- ascertaining whether proper with view of amined the record is sufficient find information appears therein. We versible error substance; judgment are likewise in both form and the verdict errors. procedural no regular The record discloses and sufficient. appellant sustained Virtually every behalf of made on State as defend- interposed court, few trial merely record analysis, In its last ease was unfolded. ant’s conflicting The evidence questions evidence. presents of fact on jury in return- fully whole, warranted case, taken as a ap- nothing presented on has been it reached. There the verdict interfering with the execution peal justify which would our accordingly, affirmed. judgment is, sentence. The Tipton, con- J., 1934. Friday, June set for of execution Date J., «urs; Ellison, absent. Agnes Appellants, Elec Union Blavatt, Blavatt
Mathew (2d) Light Corporation. Company, Power & —71 tric May Two, 17, 1934. Division
Lemen, Vogel Field <& appellants. George-M. MeCammon, Rassieur, Rassieur and Theodore John Jr., respondent. *3 from of the circuit
FITZSIMMONS, appeal an order C.—-Plaintiffs sustaining to the evi- city Louis, demurrer court, of St. defendant’s $10,000 damages of their for the death Plaintiffs dence. sued injuries years age, from Blavatt, fifteen who died son, then with cer- he came in contact May him sustained on high-tension tain wires. defendant owned alleged in petition substance
The amended substation, Avenue Newstead located at maintained a and carrying a containing large number of wires Louis, St. city high-tension electric wires. electricity and high voltage of known immediately adjoining the sub- alleged further petition recreation, generally place as a lot, by children was a station used known, have knew or should games, which defendant including ball likely games were the course of children and further high- defendant’s contact with and in proximity close to come knew, or the exercise of wires, of all of tension charged neg- defendants known, and ordinary have care should guard these otherwise or fence failed to carelessly and ligently carelessly main- negligently and wires, high-tension and premises, and any attendant employing wires, without the station tained guard, negligence, plaintiff’s and that as a defendant’s direct result of 27, 1930, re- May son came contact with tbe electric wires on answer admitted ceived burns from which amended he died. The high- station, including ownership and maintenance of the petition wires, allegations tension the amended but denied the other contributory pleaded negligence. part tended to show that The evidence im- was on Newstead Avenue fendant’s substation fronted adjoined mediately church which was located north of property Avenues. When oil northwest corner of Newstead and Penrose erected, back of substation was first the lot defendant’s substation games. building Later defendant was used children for ball high-tension placed wires on erected a transformer and building the lot. The wall built a brick wall around rear of its high, eighteen inches thick and approximately ten feet seven to alley in doors, in the the rear of with two iron had entrance hinges, with iron to the wall doors were fastened property. These hinges. and next to the having Inside of doOT two or three each was intended was an iron cat walk which and near of it require might them to employees whose defendant !s duties the use of signs and the wires. There were transformer work about the killed, reading, boy gates wall, upon which and on the Voltage. Out!” Alfred Blavatt could read. “Danger! High Keep eighth grade public school. of a He was only entry provided to through the enclosure gates at the rear through building gates the front. Both the and the front always entries were kept presence locked. The employees of necessary defendant was not operation of its sub- *4 station, and employees its except never seen there when a transformer blew, emergency or trouble crew went there. far So as the record shows, defendant did any not at time receive either knowledge or any boys notice that trespassed had on its property. the rear of immediately the church and south of defend- premises ant’s was unfenced. year at For least a and a half before plaintiffs’ injured, son was by boys neighbor- this lot was used playing hood for games, including various handball. In playing handball, boys the would use the brick wall backstop, hitting as a the against ball go the wall. When the ball would over the into wall property, boys defendant’s go the would over the wall They after it. get by climbing would on wall up the hinges the on the and then walking along the wall. the testimony trespasses actual (1) Joseph committed showed Kearney, shown; number of times not first time about two one- prior (2) half months the accident. Obermark, Marlin times, five period shown; (3) Kearney, day James accident, just the prior accident; (4) Manion, to the Charles five times in one and one- years; (5) Moenster, half times, period Jack three or four shown. injured Alfred was Tuesday. previous Blavatt on a On the Satur- day, adjoined members of the church, property whose defendant’s property south, on the a backstop built wooden handball on their premises own close to the brick the defendant. The mem- bers the church made no use this wooden back- boys stop by boys neighborhood, played and these on the following Sunday, Monday Tuesday plaintiffs’ and on until son was injured. against In playing handball, ball is backstop. thrown bounces, object game When it comes back it to hit backstop it and return At so on the first bounce. injured, boys They
time that Alfred Blavatt five the lot. injured playing had started about four ’clock and Blavatt o about only quarters of an As could play three hour later. four of a group position member of time, fifth took on defendant’s wall, the brick fence. Alfred to recover balls went over Blavatt group play- members of purpose the wall this when the for flash heard a and discovered handball noticed a sound lying backstop with his head towards Blavatt on the wall near property. walk inside defendant’s the church His were on cat feet chief taken property. He fire was removed a district hospital, where he died. on de that Alfred Blavatt was admitted and burns property when received the shock
fendant’s he Kelly v. as trespassers his law caused death. The as to being W. thus stated Benas, 217 Mo. 116 S. l. c. the rules 559) (116 : c. general there must be applicable rule of law is that
“One action for before an by the law breached raised no occupant owes or the landowner negligence lies. Another their own volunteers, going for land trespassers or benefit. their any condition for particular purpose, to maintain it 372, 87 Am. Allen, (Mass.), l. c. Colony [Sweeney v. Old Railroad licensees, Volunteers, bare Soderer, 53 Mo. 644; Staub v. Dec. worse, or premises for better take condition, the owner injury assuming risk from them, find traps hidden guns, or other spring only concealed being liable illegal willful, injure them, any form of intentionally put out active however, invitees, he owes them. To towards used force safety. *5 their care for duty reasonable to exercise by contend exception these rules to to make an Plaintiffs seek premises artificial its maintained created and defendant and injuries trespassers to or serious likely cause death to conditions discover, trespassers would not believe to such which had reason it knew, using or should known that children have adjoining playground constantly trespassing upon de- fendant’s wall premises, that defendant and therefore is liable injuries for the caused the artificial condition thus created and maintained.
Plaintiff, support exception trespassers, of this rule as to heavily upon leans Sections the Restatement of the Torts, Law of Draft No. Tentative 4. Section is as follows: Liability Dangerous “Section 205. Highly for Artificial Conditions to Trespassers upon Constant a Limited Area.
“A possessor knows, of land who within knowl- or from facts edge know, trespassers constantly upon should intrude a limited subject thereof, liability area bodily harm is to caused to them an artificial condition thereon, if “ (a) (1) condition is possessor The one which the has created or (2) is, likely maintains and knowledge, to his death or to cause bodily injury trespassers such serious to “(3) is of such nature that he reasons believe that such has to trespassers it, will discover “ (b) possessor The has failed to reasonable care warn exercise to trespassers such of the condition and the risk involved therein.
A comment the Restatement of the Law of Torts makes on foregoing section takes from the section some of the force which also ascribe to it. The comment clarifies the section. comment as follows: principle imposes
“d. in this Section which the upon possessor to warn the tres- of land absolute duty merely passer highly dangerous It is a to of even conditions. adequate reasonably warning. In give use reasonable care to termining giv- care has been used the burden of whether reasonable adequate particular injury which ing warning prevent to him involved compared sustains is to be with the risk to warning. This includes the chance unless the absence injury gravity of warned, will in contact with he come which he will sustain he does so. subject liability prin- A land is not under the possessor
“e. in this Section unless he has failed to use reasonable ciples stated created or maintained trespassers of the condition to warn the care possessor risk involved therein. The by him thereon and of the preparation will that no to assume realize entitled will, therefore, reception be on the alert has been made for addition, land. In he conditions which exist observe the particularly will be careful assume that entitled to is also which are use to which dangerous inherent conditions discover hand, he is not land. On the other entitled possessor puts *6 assume that the will discover which conditions are unusual land trespasser of the character which the intrudes or which are due to carelessness in the maintenance conditions of those which necessary land, readily are to the use the are the conditions not observable the attention which pay the should ’’ surroundings. reject unnecessary adopt We neither nor statement —-because —the quoted principles from the tentative draft of Restatement of the Law enough they of Torts. say make a do not out negligence upon
ease of us. record before Plaintiffs have not any shown us other any authorities and we have not found that war- in holding rant us that the trial court erred. The Missouri cases cited by plaintiffs are not actions trespassers upon the land fendants sued. Longview Co.,
Plaintiffs cite Clark
Public
Wash.
Service
319,
We warning signs have seen in the instant were on the gate side wall and on the back and that there were no holes under the wall. complete There is a lack evidence show here to that de- boys fendant knew should have known that the were the habit entering enclosure to retrieve the handball when went over self-functioning require plant the wall. It was a not did operate attendant it as in Smith v. Missouri Southwest Railroad (2d) 761, City, 62 Co., 333 S. W. and in Foster v. Mo. Kansas Clay County 26 Joseph Ry. Co., (2d) and St. S. W. Mo. injured 770. In persons railroad cases where are or killed while walking along paths many trespassers, beaten and worn the feet of always engine trainmen, passing who are visible to men and the rule Ry. rightly [Eppstein Co., v. Pacific different so. Missouri 720, 94 Mo. In the instant case the trial court declared 967.] its intention to sustain an to evidence unless could knowledge show that the habit of “I entering plaintiffs responded: and counsel don’t the enclosure showing know that was made. I can show that. And no such principles here facts to invoke the obvious that there has held in cases “attractive nuisance” cases. And this court principle attractive power electrocution wires that the nuisances ' go beyond in Missouri. does not the turntable cases [Howard Joseph 289 S. W. Co., St. Transmission Mo. charged fence and negligence is that defendant failed to other- guard. guard premises employ failed an attendant or
wise opinion high brick wall a sufficient barrier In our them, least fulfill defendant’s trespassers, exclude wall and a sufficient warn- toward them. The notices on the authority impose upon would defendant the ing. We know of no warnings attempt employing a watchman to what the excluding judgment way trespassers. The might fail to do Cooley accordingly Westhues, CC., is affirmed. of the circuit court concur. foregoing opinion by Fitzsimmons, C., PER CURIAM:—The absent; J., Tipton, P. opinion Ellison, of the court.
adopted as the Leedy, J., concur. Acting J.,