Thе ■ appellant contends the petition shows 'the plaintiff to be a trespasser1 to whom- it owed no duty in the 'absence of actual knowledge1 of his -perilous- position. ■ It is -further- argued that the action was predicated uipon-- ordinary or simple negligencе-which is a-lesser degree of negligence'than
With this contention we cannot agree. Here, the petition alleged: “By virtue of the custom, intents and purposes of- the defendant there was an implied invitаtion extended to McKinley Hutto to come onto the exact premises where hе was injured. . . . The defendant had on numerous previous occasion’s allowed emplоyee's’ and visitors’ children of tender years to be present in the same premises wherеin McKinley Hutto was injured and knew that such children of employees and visitors were often оn said property and in the immediate area wherein McKinley Hutto was injured.” These allegations are sufficient to place the plaintiff in the status of a licensee. Atlantic Ice & Coal Co. v. Harris,
The petition alleged that the plaintiff was a two-year-old child and that the defendant’s supervisory personnel had actual knowledge of his presence. As to a licensee whose presence is discovered and after his position of peril is known, or should have been known, it may be wilful or wanton to fail to exercise ordinary care to prеvent injuring him. “The fundamental concept in this class of cases, as in that of trespassers, is оf a liability only for wilful or wanton injury; but it is usually wilful or wanton not to exercise ordinary care to рrevent injuring a person who is actually known to be, or reasonably is expected to be, within the range of a dangerous act being done.” Mandeville Mills v. Dale,
After the defendant was aware оf the plaintiff’s presence on the premises, his size and age were to be considеred in determining what ordinary care required of the defendant. Southern R. Co. v. Chatman,
The appellant also insists that there is nо allegation that the defendant had actual knowledge of any peril or danger to the plaintiff. This contention is based on the fact that the petition alleged that the dеfendant’s supervisory personnel knew or should have been aware of the plaintiff’s immediate danger. An allegation of actual knowledge was not necessary becаuse the duty to exercise ordinary care arose when the plaintiff’s presence was discovered and he was known, or reasonably expected to be, within range оf a dangerous act being done. Mandeville Mills v. Dale,
The petition set forth facts sufficient to present a question for the jury whether the defendant was negligent in the particulars alleged. The trial court did not err in overruling the general demurrer.-
Assigned as error was the overruling of the speсial demurrer to Paragraph 3b which states: “The defendant- had on numerous previous oсcasions allowed groups of school children' of tender years to be present in the aforesaid premises, and knew that such school children made periodic visits tо said property; that they were in danger from unguarded machines of the type which injured McKinley Hutto; but said defendant made no effort to prevent the presence of said sсhool children or to make the premises safe for them.”
In a suit for damages arising out of the defendant’s alleged negligence, generally similar acts or omissions on other occasions are not germane, because the issue before the court is the negligence or non-negligence of the defendant at the time and place in question. Cox v. Norris,
The remaining enumeration of error is without merit.
Judgment affirmed in part; reversed in part.