106 Kan. 569 | Kan. | 1920
The plaintiffs, Walter L. Pennington and Florence Pennington, brought this action against the Little Pirate Oil and Gas Company, charging it with negligently causing the death of their son James, who was nine years old. The trial court sustained a demurrer to plaintiffs’ evidence and gave judgment for the defendant, and from this ruling'and judgment plaintiffs appeal.
The defendant had constructed a pump house and installed in it pumping machinery, which was used in pumping oil from a well in the vicinity. The plaintiff Walter L. Pennington had been employed by defendant to run the plant, and had been in charge of it for a considerable period before the accident occurred. He and his family, consisting of a wife and six children, lived in a house about 100 feet from the plant. The father of James generally attended to the plant, but sometimes the mother started and stopped the engine, and occasionally they permitted Wayne, the oldest son, who was about twelve years of age, to turn the power on and off. Wayne went into the power house on the day of the accident to shut off the engine, and his brother James accompanied him. In some way not definitely shown, James was caught by the belt, carried around the pulley, and so severely injured that he died in a few minutes after the injury. The father and mother both testified that they had warned the children repeatedly to keep away from the plant, although the mother said that she had allowed the children to go with her into the power house when she was stopping or starting the machine. Wayne, the oldest son, testified that his mother had told him and James to go into the power house on the day of the injury, but this was denied by the mother.
The court held that plaintiffs’ evidence did not establish a cause of action, and on this appeal they base their claim for a reversal on the theory that the pumping plant was an attractive nuisance, and that a liability arose against the defendant under the doctrine of the “turntable” cases. Taking plaintiffs’ evidence at the strongest, and giving them the benefit of eveiy favorable inference to be drawn from it, we think the case
“We do not think that the doctrine should he applied to the keeping of useful machinery in an inclosed building even though the doors be frequently left open.”
(See also Brown v. Canning Co., 132 Iowa, 631.)
The machinery as we have seen was not left unguarded, and the injured boy had not been left without warning. The plaintiffs testified that the children had been carefully instructed as to the danger of the machinery, and that they had told James not to go into the power house. The mother testified that she repeated the warning almost every time that the children went out of the home. Plaintiffs earnestly contend that the facts in the case bring it within the rule of Smith v. Bottle Co., 84
Under the evidence it is clear that the defendant did not violate any duty which it owed to the plaintiffs, that the lamentable accident was not due to the negligence of the defendant, and hence there was no error in sustaining the demurrer to plaintiffs’ evidence.
Judgment affirmed.