217 Mo. 1 | Mo. | 1909
Plaintiffs (father and mother of Michael Kelly) sued for the death of Michael, an infant of tender years, laying their damages at $5,000, and grounding their action on negligence. Proof went in pro and con. At the close of the evidence the court instructed the jury that under the pleadings and evidence their verdict must be for defendants. Thereupon plaintiffs took a nonsuit with leave. Failing to get it set aside, they appeal.
The pleadings.
The petition charges the intermarriage of plaintiffs; that their son, Michael, was the rise of nine years old on the 18th of June, 1905; that defendants were the owners, occupants and proprietors of certain premises on South Second street in the city of St. Louis and the lumber and lumber yard thereon; that said premises opened on said street and on a public alley, were unfenced and unguarded, and that children in large numbers played on the premises, all of which defendants well knew; that such open lumber yard was an attraction for children to play on said premises at and about where the lumber was piled, as defendants well knew; that children in large numbers were attracted to play at and about the piles of lumber upon said premises and were endangered, if
The answer was a general denial and a plea of the negligence of Michael, in that he with some companions wrongfully trespassed upon the premises and carelessly and negligently caused lumber to fall upon him; and, moreover, that the injuries of Michael were caused, or directly contributed to, by the carelessness and negligence of plaintiffs in permitting their said son wrongfully to trespass upon said premises and the lumber piles.
The reply was a general denial.
It is agreed on all sides that defendants for many years maintained a box factory across the street from the locus; that they owned a lumber yard maintained on the north half of a certain lot and that they rented the premises from month to month; that at the time in hand they had several piles of lumber on this half lot; that said half lot never had been fenced in front or rear, but wagons drove through the yard directly from Second street to the alley. That plaintiffs lived in an upper apartment in a house next door to the lumber yard.
Plaintiffs put in proof tending to show that they did not allow Michael to play in the lumber yard and that whenever they found him there in disobedience to their instructions, they admonished him and brought him away; that the yard is located in a populous -part of the city of St. Louis and many children lived in that region; that the pile killing the boy had been there several months and was twelve feet and upwards high, was some distance from the alley and some distance from Second street; that it had no cleats or “stick binders” and no bracing of any kind and that while short pieces were on the bottom, longer pieces were on top. They also put in evidence tending to show that children played in the yard frequently, mostly afternoons after school hours and Sundays; that the right way to pile lumber safely was to pile it with cross-binding sticks or cleats to brace the pile. Patrick Kelly testified that defendant, G-eorge Benas, told him in the presence of one Carraher and his own foreman, the next day after the accident, that he (Benas) knew boys played there and that the pile was not in good condition. Carraher also testified that he heard Benas say that the lumber was not piled right. Plaintiffs’ evidence further tended to show that at about seven o’clock Sunday evening on said 18th day of
Defendants on their part put in proof to the effect that the lumber was carefully piled; that they employed a watchman on Sundays and evenings who guarded the yard and lumber against trespassers and warned children away; that children did not play there with the consent of defendants, but, to the contrary, were constantly warned and driven away by them and their employees and by policemen; that the pile was not rickety or top-heavy; that there was a shed used by a junk dealer joining the lumber yard, about a foot from the pile, which was a little higher than the pile; that at the time of the accident there had been some boys on the roof of this shed flying a kite — Michael one of them; that they were warned off by the wife of the owner of the shed and, in jumping from the shed to the lumber pile, Michael was the last to go and the lumber fell just as he jumped. Other evidence tended to show that, in flying a kite, the boys went on a lumber pile instead of the roof of the junk dealer’s shed, that Michael had been on the roof shortly before
Such, in brief, is .the case on the facts.
On such record we are of opinion plaintiffs cannot recover. This, because:
One applicable general rule of law is that there must be a duty raised by the law and breached by defendant before an action for negligence lies. Another is that the landowner or occupant owes no duty to trespassers or volunteers going upon his land for their own purpose, to maintain it in any particular condition for their benefit. [Sweeny v. Railroad, 10 Allen (Mass.) l. c. 372; Straub v. Soderer, 53 Mo. 38.] Volunteers, bare licensees and trespassers take the premises for better or for worse, as they find them, assuming the risk of injury from their condition, the owner being liable only for concealed spring guns, or other hidden traps intentionally put out to injure them, or any form of willful, illegal force used towards them. To invitees, however, he owes the active duty to exercise reasonable care for their safety.
There was always a main modification allowed to the foregoing general non-liability to persons entering without the owner’s permission and that arose where he made such changes in his land so hard by a public highway as to put a traveller in danger who mistook the course of the highway and, without fault on his part, inadvertently strayed from it into the danger. [Railroad v. Harvey, 77 Ohio St. l. c. 240.]
Says Campbell, J. (Hargreaves v. Deacon, 25 Mich. l. c. 5): “We have found no support for any rule which would protect those who go where they are not invited, but merely with express or tacit permission, from curiosity or motives of private convenience, in no way connected with business or other
In the same case that jurist says (referring to the application of the foregoing principles to children): ‘ ‘ There is some danger in dealing with these questions, of confounding legal obligations with those sentiments which are independent of the law, and rest merely on grounds of feeling, or moral considerations. We feel, usually, more indignation at wrongs done to children, •than at wrongs done to others. But the law has not usually given them civil remedies on any such basis. Nor does it usually, if ever, impose any duties on strangers towards them, resting entirely on the fact that they are children. Those who have any special dealings with them, as parents, teachers, and employers, incur obligations appropriate to- their relations, and differing from those incurred towards others in proportion to the necessity of care and protection, and the risk of injury. But those who have no1 such relations with them are not liable for negligence in carrying on their own business, beyond what would be their liability to others, as well as children, who are equally free from blame. ’ ’
In the Hargreaves case care was taken to express no opinion concerning cases where the nature of the business is such as to present peculiar attraction to children, beyond other kinds of occupation, nor was the writer' dealing with the subject-matter of contributory- negligence relating to children which is to be gauged with reference to infantile capacity. With -these modifying suggestions we give approval to -Judge Campbell’s remarks.
There is another main exception grafted on the general rule of non-liability to trespassers, volunteers •or bare licensees and on that exception appellants lean
There has been marked judicial eloquence and astuteness in stating the legal ground of liability in the turntable cases and no little difficulty is found in formulating sound and settled legal principles for it to rest on, but 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 ear-marking 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.
For instance: In this court, in Overholt v. Vieths, 93 Mo. 422, we refused to apply it in a case where a child was drowned in a pond of water in a rock quarry.
In Schmidt v. Kansas City Distilling Co., 90 Mo. 284, we applied it to a little pool of hot water on the
But in Barney v. Railroad, 126 Mo. 372, we doubted and refused to follow the Schmidt case and held that moving railroad cars were not within the purview of the turntable cases as dangerous and attractive machinery. In that case a child, six years old, got into a railway yard where children much frequented and catching hold of the stirrup in the foot of the ladder on a car and putting his feet against the trucks to steal a ride, he slipped off and was mangled.
In Witte v. Stifel, 126 Mo. 295, a little boy went to a building under way, three feet from the street line, and tried to draw himself up by taking hold of a loose stone placed across the top of a cellar window frame. The stone fell and killed him. It was held there could be no recovery.
In Moran v. Pullman Car Company, 134 Mo. 641, the owner of a lot was held not liable for failing to fence it. In that case there was a pond on the lot and a child was drowned while bathing in it.
In the Butz Case, 137 Mo. 503, the owner of land was held not liable for injuries to a child who voluntarily went on his private premises against the -'admonition of his own father and, in trying to get a piece of wire in an old quarry, used as a dumping ground, burned his feet in a smouldering fire.
And in Arnold v. St. Louis, 152, Mo. 173, a pond, lightly frozen over in the neighborhood of a public school, attractive to children of tender years for skating purposes and where children were known by defendants to resort, was allowed to exist. Two children-, were drowned there while skating without the permission or invitation of the owner of the lot, and recovery was denied.
In other jurisdictions applying the turntable doctrine, there is the same tendency to limit it within strict bounds, as pointed out by Summers, J., in Railroad v. Harvey, 77 Oh. St. l. c. 245. The prying mind of the student in jurisprudence may see cases in point there collated from Minnesota, Georgia, Nebraska, California, Kansas, Texas, Tennessee and Washington, to that effect. See also, authorities cited by diligent counsel in their briefs.
If the old channel of the law is to he quite changed by the application of the new doctrine automatically and without discrimination, if sentimental considerations (however elevated and tender) are to usurp the place of cold and calm reason as the foundation for rules of law, then the floodgate now damming back liability will be raised letting in strange and deep waters for the landowner to struggle with. Not only will he be liable for boys drowned while swimming in his stock pond (the idea of swimming being alluring to a boy), for those who fall into uncovered wells, cisterns and cellars (the notion of playing on the brink of such being a boyish one), for children who are suffocated while playing in piles of sand accumulated for building purposes or in sliding down stacks of' straw unscientifically piled and exposed, but he may be mulcted in damages for injuries to his neighbors’ children, who, romping in his haymow, without his invitation, break their bones by sliding down his hay chute, or those who, playing in his rock quarry, are hurt. Shall he fence against adventurous, trespassing boys? Almost as well suggest “that he build a wall
Michael was a trespasser. Defendants did not intentionally injure bim. They set no trap for bim. Their lumber piles were not an attractive nuisance as defined in tbe turntable cases. Their yard was not used by children by their invitation, express or implied, as a playground, even though their watchman did not always drive children away, and though, on this Sunday evening, be was off duty for a spell. We think tbé court ruled correctly.
Therefore, tbe judgment is affirmed.