137 Mo. App. 589 | Mo. Ct. App. | 1909
— This is an action for damages alleged to have accrued to plaintiff on account of personal injuries received through defendant’s negligence in maintaining a defective fence around a common yard adjacent to a rock quarry. While plaintiff was leaning over the topmost board of the fence, it became loosened from the shed to which it was nailed, and precipitated him to the bottom of the quarry beneath. Plaintiff received painful and serious injuries by coming in contact with the stones below. At the conclusion of all of the evidence on the part of plaintiff, the court directed a verdict for the defendant and plaintiff prosecutes the appeal.
At the time of his injury, plaintiff was an exceedingly bright boy, ten and a half years of age. He was born and reared immediately across the street and within one hundred feet of the place where he was injured. He was entirely familiar with the property and its surroundings. In view of these and other facts, it is believed the circuit court directed a verdict for the defendant on the theory that the plaintiff was negligent as a matter of law. The quarry into which plaintiff was precipitated by the breaking of the fence, is located immediately adjacent to the defendant’s property, numbered 3874 Koscuisko street, in the city of St. Louis, and also adjacent to the Mississippi river. It appears the defendant owned the property mentioned and had let it to three several tenants. It consisted of a residence of considerable proportions, and a single lot of ground immediately adjoining on the north to a quarry which had been excavated on the south of it. The Burgher family were the defendant’s tenants and occupied the rear portion of the house on the ground floor. Another tenant of defendant was a club which occupied the front rooms of the building on the ground floor. Mrs. Hamlinson was the defendant’s tenant and occupied the entire second story of the building. The front of the building was about ten feet in the yard
However all of this may be, the defendant is not complained against for having maintained a dangerous quarry upon his premises, bnt on the contrary, the petition affirms negligence in respect of maintaining a defective fence on the brink of a quarry. Of course the rights of the parties must be determined with reference to the proximate, and not the remote cause of the injury, and if the negligent act of the defendant concurs with the act of another, whether negligent or not, and the two combined operate proximately to plaintiff’s injury, without fault on his part, the defendant is liable to respond. Now it was the defective fence which was the proximate cause of the injury. If defendant had maintained a fence reasonably safe, no hurt would have' befallen the plaintiff, and therefore the quarry, although contributing, was remote in the chain of causation. The defective fence was the proximate cause. Although the danger inherent in the situation arose primarily from the quarry, which was upon the premises of another, nevertheless if the negligence of the defendant in maintaining a defective fence contributed directly with the negligence of the quarry owner and operated as the proximate cause of• plaintiff’s injury, the defendant is liable for having failed to exercise ordinary care to the end of rendering his premises reasonably safe for such reasonable uses, as were essentially within the contemplation of the parties at the contract of letting. [Newcomb v. N. Y. C. Ry. Co., 169 Mo. 409.] It appears in proof that the defendant’s fence was in a dilapidated and defective condition. It had been erected a number of years before, and it does not appear to have been recently repaired. The boards were decayed and the nails
The more difficult question in the case is that touching the contributory negligence of the plaintiff, who was ' a boy ten and a half years of age at the time of the injury. However, it seems if there be any situation in which a bright, intelligent boy of that age should be so declared, it is in the case now in judgment, for he testified he was entirely familiar with the situation; he knew of its dangers, and knew, too, of the defective and dangerous condition of the fence. In fact this boy had received three whippings from his father before the occurrence which resulted in his injury, for playing about the dangerous precipice of the bluffs and rock quarry on this property. It appears in evidence that he and others had been frequently warned by Mr. Burgher, and upon more than one occasion, driven away from the premises because of the impending danger involved in their play about the quarry. It appears plaintiff was an exceedingly bright boy. Besides the testimony of his father, that he was very bright and intelligent, the boy himself gave testimony to the effect that he was far advanced in his classes at school, and although at the
Now to the end that the conclusion to be pronounced on this branch of the case may not be regarded as unjust, we will set out, in' haec verba, certain questions and answers touching the knowledge and understanding of this boy as to the position assumed and its ■ attending dangers.
“Q. What were you doing? A. I was leaning over, looking westward.
“Q. Back of the shed? A. Yes, sir.
“Q. You wanted to see if they were at the other end of the shed? A. Yes, sir.
“Q. Now, Leonard, then what happened? A. Then the board gave way and I fell.
*600 “Q. Where did you fall? A. Down between two rocks.
“Q. Hadn’t you been hanging around on those bluffs and didn’t your father tell you to quit it right" before you were injured? A. Yes, sir.
“Q. How many times has he told you to stay away from the bluffs? A. I don’t know.
“Q. Don’t you remember the time your father tied your hands and whipped you for going down to those bluffs before you were injured?. A. He never tied my hands.
“Q. Did he ever whip you for going there? A. Yes, sir; but he never tied my hands.
,“Q. He whipped you for going on the bluffs? A. Yes, sir.
“Q. How many times? A. I dont’ remember.
“Q. How many times before the 27th day of May? A. About three times.
“Q. You once climbed over the bluff there and got down to a tree, didn’t you?
“The Court: Before you got hurt? A. Yes, sir.
“Q. And they had to go and get you out, didn’t they? A. No, sir.
“Q. Did you get out yourself? A. Yes, sir.
“Q. You got whipped for it, didn’t you? A. I don’t know.
“Q. It might have happened, but you don’t remember, is that right? A. Yes, sir.
“Q. Did you say a little while ago that you got whipped for going around there? A. Yes, sir.
“Q. You were always told not to go there, were you not? A. Not many times.
“Q. Well, but you were told not to go there. A. Yes, sir.
“Q. And you knew if you would go near that bluff you would be liable to fall inf A. Yes, sir.
“Q. You knew it was a dangerous place, didn’t youf A. Yes, sir.”
“Q. And you were leaning over, right by the shed, weren’t you? A. Yes, sir.
“Q. Then the board broke loose? A. Yes, sir.
“Q. How did you fall? A. My grip gave way from the board.
“Q. Your grip? A. Yes, sir.
“Q. Didn’t you just say that your grip gave way from the board? A. If 1 had kept my grip the board would have come loose from the post.
“Q. Hoio do you know? A. !Because the board . was rotten.
“Q. Did you watch it to see whether it was rotten? A. I saw it before that.
“Q. Was it dark or light? A. It was light.
“Q. Before you went there, you saw it was rotten? A. Yes, sir.
“Q. You saw it was weak? A. Yes, sir.
“Q. I am asking you on this day how was it? A. The nails were rotten.
“Q. Did you know that? A. Yes, sir.
“Q. You knew that at the time you were there? A. Yes, sir.
“Q. How did you know it at the time you were there it was rotten — the nails were rotten? A. I knew it before that.
“Q. You saw that, did you? A. Yes, sir.
“Q. How did you know it? A. Because I looked at it.
“Q. When did you look at it? A. Before I fell.
“Q. When you fell? A. Before I fell.
“Q. Well now, you say it was rotten at the time you fell, Leonard; how do you know that? A. Because I felt it then.
“Q. You had looked'at it before you fell? A. Long ago I said I looked at it.
“Q. Still you leaned on the board? A. Yes, sir.
*602 “Q. And the hoard gave way? A. Yes, sir.
“Q, This yard; didn’t you know you were not allowed to be around there? A. Yes, sir.
“Q. You did? A. Yes, sir.”
Mrs. Burgher testified for the plaintiff, and among other things, she said she had warned her own boys and those of her neighbors numerous times not to play around this quarry. Aside from this, she had frequently chased them out of the yard and into the street. On the particular occasion of this injury, she was not at home, however. At the conclusion of her testimony appear the following questions and answers:
“Q. You had not chased them out very shortly before this boy was hurt, had you? A. I didn’t care no more. We was angry and I didn’t care for nothing. I was angry with the Herdts and I didn’t care no more if he fell over or not because I told them so much and they wouldn’t listen.
“Q. You were angry at the Herdts and did not care whether he fell over or not? A. No, sir.”
This was the state of facts from plaintiff and his, witnesses upon which the court directed a verdict for the defendant.
Now touching this question of negligence on the part of plaintiff, it may be said that the law is extremely lenient toward those of tender years. Children are not required to exercise the same degree of care and prudence as are persons sui juris. However, generally speaking, those who have attained • an age which is not wholly irresponsible are required to exercise the degree of care usually exercised by children of equal age. That is, the degree of care which is usually exercised by the average child of the same age, possessed of ordinary childish prudence. [7 Am. and Eng. Ency. Law (2 Ed.), 405 et seq.] Nevertheless, it seems the degree of care required of a child is to be determined by reference to his knowledge of the dangers encountered and capacity to understand or appreciate the same.
In a more recent case, that of Spillane v. Mo. Pac. Ry. Co., 135 Mo. 414, the same court declared the conduct of a bright, intelligent boy, nine years of age, who was shown to both know and understand the dangers attendant upon the operation of railroad trains, to be a proper subject for ascertainment under the rules of law which obtain to persons sui juris. In that case, the boy’s mother had sent him to an icehouse beyond the railroad track for some ice. He was returning therefrom, dragging the ice on the ground by means of a string, one end of which was tied around the ice and the other end around his wrist. The boy walked across the track, the piece of ice remaining on one side and he on the other. While in this position, the switch engine approached and became entangled in the string in a manner resulting in his injury. It appeared he was entirely familiar with the railroad, switch engine, and its dangers. However, he had taken no precautions by looking and listening for its approach. In this state of the case, the court declared that as it appeared the
In Payne v. C. & A. Ry. Co., 136 Mo. 562, the court in banc declared a bright, intelligent, negro boy, aged eleven years possessed of a good mind, and intelligent, guilty of contributory negligence as a matter of law for having attempted to cross the track before an approaching passenger train.
Another case before the court In Banc is Graney v. St. L., I. M. & S. Ry. Co., 157 Mo. 666, wherein a boy, aged eleven years and nine months, was standing within three feet of the railroad track while a freight train passed at a high rate of speed, about twenty-five miles an hour. Expert testimony introduced at the trial tended'to prove that it was possible for the current of air incident to the operation of the train at that rate of speed to draw a boy of the age and size in question beneath the cars. The evidence tended to prove the lad came to his death in that matter. It appearing the boy was familiar with railroads and the dangers attending their operation, the Supreme Court declared him guilty of contributory negligence as a matter of law for the reason he must have known and understood the danger and recklessly encountered it.
A more recent case in our Supreme Court on the subject is that of McGee v. Wabash R. R. Co., 214 Mo. 530; 114 S. W. 33. In that case, a boy, thirteen years of age, was walking on a public highway across a railroad track on an errand for his father. It appeared from the testimony of his younger brother that he was not seen to look and listen for approaching trains. Having been killed by the defendant’s passenger train, the court declared him guilty of negligence as a matter of law.
It appears the Kansas City Court of Appeals, in Mann v. M. K. & T. Ry. Co., 123 Mo. App. 486, declared an intelligent boy, possessed of usual knowledge of natural facts, and twelve years of age, to be guilty of contributory negligence as a matter of law for having lain down and fallen asleep upon the depot platform near the tracks with knowledge that a train was soon to pass, which passing train inflicted his injury.
The Supreme Court of Iowa ruled the same with respect to a boy thirteen years of age, playing upon a turntable. [Merryman v. C. R. I. & P. Ry. Co., 85 Iowa 634.]
And the same court, in Carson v. C. R. I. & P. Ry. Co., 96 Iowa 583, affirmed the doctrine of the case last cited and declared a boy twelve years of age, possessed of good ability and usually well informed, who was injured while playing upon a turntable, guilty of contributory negligence because it appeared that he knew and understood the dangers incident to the appliance.
In Knox v. Hall Steam Power Co., 69 Hun (N. Y.) 231, the Supreme Court of the State of New York declared an average boy, twelve years of age, guilty of contributory negligence as a matter of law. In that case it appeared the boy was employed on the fourth floor of a building in which an elevator was operated. He was sent on an errand, approached the elevator shaft, and leaned over a chain which was stretched across the same to prevent persons from walking into the shaft. His purpose in leaning his weight upon the chain was to ascertain whether the elevator was .ascending from the floor below. The chain broke and he was precipitated to the bottom of the elevator shaft, very much as was the plaintiff in this case precipitated to the bottom of the quarry because of a defective fence. However, in the New York case referred to, it did not appear that the boy knew the chain was defective and likely to break, whereas in the present case, plaintiff' knew full well the facts pertaining to the defective fence and that it was dangerous to lean upon it.
The judgment of the circuit court should be affirmed. It is so ordered.