168 Mo. App. 431 | Mo. Ct. App. | 1912
(after stating the facts).- — Beyond all question this case was pleaded by plaintiff and tried on the theory that it was one involving what is sometimes called “the turntable,” or “attractive nuisance,” or “attractive appliance” law.
Referring to that doctrine as applied to cases of injuries to children sustained by playing around or resorting to such appliances, and without any desire to go into a full discussion of it or pedantically to go over its history, it is not improper to say that it is generally conceded to have Jhad its origin in the decision by the Court of Queen’s Bench in the case of Lynch v. Nurdin, 1 Adolphus & Ellis (n. s.) 422, also reported 41 E. C. L. 422. It is rather curious to note the various constructions that have been placed upon Lynch v. Nurdin, a decision announced by Lord Den-man, Chief Justice of the Court of Queen’s Bench, in 1841, by the several courts, not only of our country but of Great Britain. Great diversity of opinion has
Whatever diversity of opinion there may have been in the courts of Great Britain as to what was really decided in Lynch v. Nurdin, so far as the courts, of that country are concerned its> interpretation seems to have been definitely settled by the decision of the House of Lords in Cooke v. Midland Great Western Railway of Ireland, L. R. App. Cases (1909), 229, in which latter case Lynch v. Nurdin is expressly approved and applied in a turntable case.
Sioux City & P. R. R. Co. v. Stout, 17 Wall. 657, is the first case in the United States Supreme Court in which the turntable question arose and in which it was recognized in connection with injury to a child, who had played about it. It reached the Supreme Court on error to the circuit court of the district of Nebraska, in which court the case had been tried before Judges Dillon and Dundy. [See 2 Dillon R. 294, s. c., Fed. Cases, Nos. 13,503 and 13,504, pp. 181-183.] Mr. Justice Hunt, who delivered the opinion of the Supreme Court, an opinion concurred in by all the justices, cites Lynch v. Nurdin as authority in support of the claim of liability for injuries to a child sustained while playing with a turntable. There has been very great discussion of and disagreement as to the Stout case in the decisions of the State courts which followed after that case had been determined, the applicability of Lynch v. Nurdin to a turntable. ease ■being sharply challenged. That its principle was to be applied to such cases in the national courts was finally and definitely determined by the Supreme
Turning to the decisions in our own State, it will be found that the rule invoked in the turntable cases has been under consideration by our court as well as by the Supreme Court in several cases. As said by Judge Lamm in Kelly v. Benas, 217 Mo. 1, l. c. 11, 116 S. W. 557, referring to the turntable rule, “It is established in our law, and doubtless on principle ought to .,be applied (in those jurisdictions asserting the doctrine) to other cases coming strictly within the limits of the doctrine and presenting every earmarking element upon which liability is predicated in the principal case. While this is so, the manifest distress and injustice flowing from unnecessarily extending the doctrine, or loosely applying it to many conceivable cases, has caused those courts accepting it to restrict its application to the narrowest bounds.” Citations of numerous cases from our Supreme Court illustrating this follow. [See particularly Witte v. Stifel, 126 Mo. 295, 28 S. W. 89; Barney v. H. & St. J. Ry. Co., 126 Mo. 372, 28 S. W. 1069.] The last reported decision of our Supreme Court on the question to which our attention has been called or which has come under our observation is the case of O’Hara v. Laclede Gas Light Co., 244 Mo. 395, 148 S. W. 884. In this latter case Judge Graves, who delivered the opinion of the court, quotes at length from the decision in Brown v. Salt Lake City, 33 Utah 222, l. c. 236, and following, as stating the position of the several courts throughout the country on this rule. We refer to that case and to the quotation from it made by Judge Graves. Among other cases cited in Brown v. Salt Lake City is the case of Overholt v. Vieths, 93 Mo. 422, 6 S. W. 74. Following the quotation above mentioned, Judge Graves refers for a full review of all the cases of our Supreme Court beginning with Overholt v. Vieths, supra, to the recent case of Kelly v. Benas, supra,
. It is further said by the court in that case that the plaintiff had constructed her petition on the turntable doctrine of negligence and that so constructing it and submitting the case to the jury on that construction of it, it was unnecessary for the court to concern itself in an endeavor to arrive at the proper construction to be given to the petition; that “by the theory adopted below she (plaintiff) is bound here.” This applies to the case now before us. That this case is distinctly presented by the petition and by the evidence as one in which the doctrine of the turntable, attractive nuisance or attractive appliance cases is sought to be invoked, is clear.
Whatever diversity of views may be held by the courts as to the application- of the doctrine, or even as to whether it can be sustained at all, it is fairly clear that these factors are held by all the courts recognizing the doctrine as necessary to its application: First, the machinery or appliance, the operation of which was the direct cause of the injury, must have been a dangerous appliance in itself when set in motion, as is a turntable; or it was of a kind liable to become dangerous from the position or condition in which it is left, if set in motion, this latter seeming to fall in with Lynch v. Nurdin. There the dangerous appliance, if we may call it so, was a horse and cart,
In the case at bar we do not think it necessary to place our decision upon the construction of the petition to determine whether it states any cause of action. There is a verdict and judgment in this case, so that if a cause of action is stated, although imperfectly, the defendant having pleaded over after demurrer, there would be no cause for setting aside the verdict or arresting the judgment. That the petition in this case states a cause of action is not challenged. That it distinctly proceeds upon the theory of an attractive appliance 'and is distinctly bottomed on the doctrine of the turntable cases and that the case was tried upon that theory in the circuit court, admits of no doubt, as we have before remarked. What is claimed by counsel for appellant is a failure of proof of the material averments of the petition.
Returning to a consideration of the evidence in the ease, substantially all of which we have set out, we are confronted with the question as to whether that evidence entitled the plaintiff to go to the jury; whether it shows actionable negligence on the part of defendant.
It is averred that plaintiff, a child, saw one of these toys fall under a wagon being driven by employees of defendant and rushed out to obtain it, placing his hand and arm under the wagon to get it. The actionable negligence then here charged is that defendant’s employees driving the wagon “did then and there carelessly and negligently cause the hind wheel of said wagon to pass over plaintiff’s right
Taking up this last assignment first, it is to be said of it that it is entirely unsustained by any evidence in the case. There is not a syllable or line of testimony tending to show that it was the purpose of defendant to attract the attention of children to the whirligigs, the wagon or the products of the defendant. Nor is there any evidence in the case from which any such purpose may be said to have been proven. It is not to be inferred that the children residing on the' streets along which this wagon was driven and the toys turned loose were prospective customers. The
Recurring to the other allegations of negligence, careful consideration of the testimony in the case forces us to the conclusion that it fails to establish any actionable negligence on the part of defendant’s employees. It appears by the evidence that defendant’s employees were driving the team and wagon through the public streets of the city of St. Louis. This they had an undoubted right to do: the right of access to and user of those streets. That the team was being driven at a slow walk, is the unvarying and uneontradicted testimony of every witness in the case, witnesses produced and introduced by plaintiff. Even the plaintiff himself so testified. There were two persons on that wagon in charge of the team and of the appliances, one of them the driver, the other a young man who was turning loose these toys. It is true that
The evidence is without contradiction that- these toys were thrown out toward the front of the wagon, or toward the side. If any of them passed behind the wagon they, and any one running after them, were out of the vision of the persons in charge of the wagon and who were sending the toys into the air. Nor can it be said to be an act of negligence on the part of those persons that they did not watch the flight of these toys to see what happened in connection with loosening them on the public street. There is not a particle of evidence tending to show that any boys followed any one of these toys except the boys who followed .this particular toy, and which this plaintiff endeavored to secure. Plaintiff and these boys did not go in front of the team. They went behind it. There is evidence that other of these toys were set flying, but as to where they flew, what became of them, is without any evidence. Nor is there-any evidence in the case that any children, or any other person for that matter, attempted to secure them or ran out into the street to get hold of them. That the toys were attractive to
As every witness testifies, even as this plaintiff himself testifies, when the boy, the plaintiff here, put his arm under the wagon to get hold of this toy, to reach it, he knew that the wagon was moving, that the wheels, were turning. He was old enough to know that if he put his arm in front of a moving wheel and left it there, that he was going to be hurt; he was- of sufficient discretion to know that; he says he did know it. •His excuse is that he thought the wagon had stopped or was going to stop. It is not likely, from the facts in evidence in the case that he thought anything about this. Like any other boy of his age, the chances all are that at the time, if he thought at all, he thought he would be quick enough to get the toy from under the wagon before the wheel would reach him. He took that chance and lost. The doctrine of attractive appliances, of the turntable cases, is therefore inapplicable here and cannot relieve plaintiff of the charge of contributory negligence; cannot be used to put the
Furthermore, the alleged attractiveness of the toy was no't the causa causans of the injury. That was a remote cause. The immediate cause was plaintiff placing his arm between the front and rear wheels of a moving vehicle; one that he knew was moving and which he had no reason to believe would stop.
For all these reasons, we are of the opinion that plaintiff cannot recover and that the learned trial court erred in sending the case to the jury. The judgment of the circuit court is accordingly reversed.