90 Kan. 379 | Kan. | 1913
The opinion of the court was delivered by
The plaintiff, by his next friend, sued to recover damages for injuries sustained while playing on the city dump. The jury returned a verdict in favor of the defendant, and the plaintiff appeals and complains principally of certain instructions given over his objection.
The defendant appears to contend that the dump in question was not an attractive nuisánce within the principles of former decisions by this court. The testimony of various little boys who played about the place furnishes a most graphic and unmistakable picture of an attractive nuisance within the principles of all the decisions which recognize such a thing. It appears that the dump is located at the foot of Second street and a man named Haley, known as boss of the dump, is employed by the city at a monthly salary and his duties require him to be at the place from eight o’clock until five, and he testified that:
_ “The whole city comes out there with stuff. The city carts haul garbage and rubbish there to dump it. There is no other place of that kind in the city. I have a little shanty on the dump. It was built by the city.”
The superintendent of streets testified that one of the duties of the man in charge of the dump was to keep the stuff pushed back into the river.
*381 “There are railroad tracks on the west side of the dump. Nearly all of the dump is on the right of the track. The chute is. located near the center of the dump. There was also a butting board'about twelve or fourteen feet north of the chute. When manure or anything of that kind accumulates on the dump it catches fire and during last summer it was on fire several times. . . . We never had a guard or fence on either side of the chute or dumping board. ... I can not say just how long the fire was burning before the little boy got burned. Fire would catch along there, and, as a rule, we would shove manure and other stuff into it and let it catch fire. The fire that burned the little boy might have been burning for three or four weeks before that time or it might have been burning longer. The fire was usually a smoldering one. There was never a visible blaze. . . . There are no fences or guards on the railway tracks and the boys or any person could walk right in there.”
Sylvester Kozmin, aged nine, testified that he knew the plaintiff and was at the dump the morning he got burned. Two others were with him. He further testified :
“I was there when ‘Jimmie’ got into the fire. He was going after a watermelon when he fell into the fire. Mrs. Palka helped to get him out of the fire. I saw her pull him out. ... I went down there nearly every day for about a month before this happened. I saw other boys there. They got slop down there. . . . There was a man there unloading watermelons. He threw out a watermelon and ‘Jimmie’ tried to get down after it. He was trying to beat me to it. The watermelon rolled down into the river and ‘Jimmie’ fell into the fire hole.”
The plaintiff testified that he was eleven years old, was at the dump on July 10, 1911. His mother had fold him to go to the store, and when he got there some of the boys told him they had found some money on the dump, “so I was going there and find some money. . . . I was running around on the dump and I saw a watermelon down there and was going to jump after
“The soles of my feet came off. They hurt me all the time. I can not bend the toes on my left foot, but can bend them on the right one. I can not walk on my feet except with' crutches. I have not been able to walk on them since I was burned. I did n’t walk on them at all for about four months after I was burned. I can not go to school, but I went to school before I was burned. I can not sleep at nights. I don’t feel as well since I was burned; by head hurts me and I have pains in my stomach.”
The .court appointed certain physicians to examine the plaintiff’s injuries and one of them testified that when he entered the room where the plaintiff was the boy was sitting with his feet on the first round of a chair, with rather a cheerful smile upon his face and looking rather contented. He further advised the court, however, that when he asked the boy to undress his feet he did so, “and the moment he got the rags off his feet he commenced to squeal. I could not make an examination. When I approached to touch him he would holler and when I took hold of his feet he would jerk them away from me. The feet themselves showed rather a recent burn that had been very well treated by some doctor.” It was sought to show by another
One of the instructions complained of was to the effect that if the city did not establish the entire place in question as a dump, but only so much thereof as was occupied by the chute, it was under no legal duty to keep the whole place in a safe condition, and if the place where the plaintiff was injured was not established by the city then the verdict must be for the defendant. It was a question not of establishment but one of maintenance, and if the place where the plaintiff was injured was a part of the dump maintained and operated by the city it could make no difference as to who established that portion .of the place. Another was to the effect that if the dump boss assumed control of the whole of the dumping ground without express authority from the proper officials of the city the defendant could not be held liable for any act of negligence on his part in caring or failing to care for the whole of the dumping place, including the .point at which the plaintiff was alleged to have been injured. On the contrary, if the-dump boss without express authority from the proper officials assumed control of .the whole dump and exercised it for a long period of time with their knowledge and acquiescence, it would not be necessary to show ex
The court gave .the law properly in instruction No. 4, wherein the jury were told that if for several weeks or inore immediately before the date of the injury different fires -had been burning in the dump and because of the existence of such fires the dump was a dangerous ■place for plaintiff and other children of tender years to play'or venture upon, and the defendant with knowledge of these facts and with knowledge that the plaintiff and other children of tender years had for a period of several weeks or more* been in the habit of playing or venturing thereon or thereabout and took no reason
Other alleged errors occurring upon the trial are complained of, but we do not deem them of sufficient materiality to require consideration. While the instructions given at the' request of the plaintiff were correct, the errors already referred to in those given at the request of the defendant were as likely to influence the jury as the former, and having been given it can not be said that the plaintiff, has had his case presented to the jury under á proper interpretation of the law.
The judgment is therefore reversed and the cause remanded with directions to grant a new trial.