Salter v. Deweese-Gammill Lumber Co.

102 So. 268 | Miss. | 1924

Anderson, J.,

delivered the opinion of the court.

Appellant, Roger Salter, by next friend, his father, Albert Salter, sued appellee Deweese-Gammill Lumber Company in the circuit court of Neshoba county for damages for an injury received by him through the alleged fault of appellee. At the conclusion of appel-. lant’s evidence on motion of appellee, appellant’s evidence was excluded, and verdict directed for appellee. Prom which judgment appellant prosecutes this appeal.

Appellant was injured by his clothing being caught by a set screw fixed in a piece of rapidly revolving shafting in appellee’s planing mill. Appellant was twelve years of age at the time of his injury. The ground upon which he sought to recover for the injury was what is knoAvn as the attractive nuisance doctrine. The controlling facts out of which the question arises are as follows:

Appellee owned a sawmill and a planing mill, situated near Philadelphia, the county seat of Neshoba county. This plant was on the line of the G., M. & N. Railroad. The injury occurred in the planing mill part of the plant. There was an industrial railroad switch track running along by the side of the floor of the planing mill. This floor was about the same distance from the ground as the bottom of a freight car, something like three or four feet. A car standing on this track would just clear the floor of the planing mill. Underneath the floor there was a piece of shafting ■ which revolved by means of a belt upon which cuffs were fastened by set screws. This shafting- was back under the platform irom six inches to three feet. The witnesses who testified did not agree as to the exact distance.

Appellant and some of his playmates on Sunday, the 15th day of January, 1922, heard that the planing mill was going to he started for the purpose of sharpening tools. Appellant and some other children in the neighborhood were in The habit of playing around appellee’s plant. They went in and out as they pleased. This was known to appellee. Appellant had never been warned by appellee to keep away from the plant. Immediately before appellant’s injury he and some of his playmates heard that a belt was going to be put on a pulley under the floor of the planing- mill. They went near the place where it was to be done, in order to see it. Appellant was standing- at a point about the end of the cross-ties of the switch track referred to above. According to the evidence, that put him from two to four feet from the rapidly revolving shafting- with the set screws on which his clothing caught, and caused his injury. This shafting was unguarded, but as stated above was situated some distance under the platform of the planing- mill. The evidence shows without conflict that, after watchingappellee’s employees put the belt on the pulley, appellant turned to leave the place where he stood. He was standing with one foot about the end of the cross-ties of the switch track, and the other nearer the edge of the floor of the planing mill. lie testified that his foot nearest the floor slipped, and he rolled under the flooring, coming in contact with the rapidly revolving shafting, when his clothes got caught on a set screw in the shafting, resulting in his serious injury.

Another witness, a boy who was with him, testified that appellant had his foot nearest the floor of the planing mill on a slick board, and when he went to turn that foot slipped, causing him to fall under the platform and roll against the shafting.

That this rapidly revolving, shafting which made something like five hundred ■ revolutions • a, minute, ' was dangerous to come in contact with was apparent. Appellant, whose evidence indicated he was a boy of intelligence, testified that he knew it was dangerous, that he had no purpose of going near it. In other words, the evidence without conflict showed that to come in conta’ct with this shafting was manifestly dangerous,, and that appellant was fully aware of the danger.

Appellant contends that the evidence brings this case within the attractive nuisance doctrine, and to sustain that position relies principally upon Mackey v. Vicksburg, 64 Miss. 777, 2 So. 178; Spengler v. Williams, 67 Miss. 1, 6 So. 613; Temple v. McComb City, 89 Miss. 1, 42 So. 874, 11 L. R. A. (N. S.) 449, 119 Am. St. Rep. 698, 10 Ann. Cas. 924; Union Pac. R. R. Co. v. McDonald, 152 U. S. 262, 14 S. Ct. 619, 38 L. Ed. 434; and Sioux City R. R. Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745.

In Mackey v. Vicksburg, supra, the city of Vicksburg had constructed a path leading up a steep hill at the rear of the home of plaintiff’s father. The path was so constructed as to attract children. In walking up the path, plaintiff fell off and was injured. The court held that the city of Vicksburg should have reasonably anticipated the disposition of children to explore such a way. The child in that case was only four or five years of age. Spengler v. Williams, supra, was a case in which the de-fendaiit piled lumber in a street; children were in the habit of playing around it. Plaintiff, a boy of seven years of age, while playing around the lumber pile, by reason of the negligent manner in which it had been stacked, received injuries resulting in his death. The pile of lumber appeared harmless to children. In Temple v. McComb City, supra, the plaintiff, a child, was injured by coming in contact with a municipal electric light wire strung in a tree not far from a highway. Plaintiff climbed the tree, and came in contact-with the wire, and was injured. The court held that the municipality was at fault, and was liable. That the light wire so strung was a. highly dangerous agency, and was dangerous to boys who might take refuge in the tree, and that the municipality should have reasonably anticipated that boys would do that, and that in doing so might come in contact with the wire and be injured as the plaintiff was.

The attractive nuisance doctrine seems to have originated in what is known as the turntable case, Sioux City R. R. Co. v. Stout, supra. In that case the railroad company maintained a railroad turntable in an open space in a community where something like one hundred people resided. It was near a traveled highway. The grounds were uninclosed. Plaintiff and some of his playmates, as they were in the habit of doing, went on the premises and got on the turntable, for the purpose of riding around on 'it. It was not guarded or locked, and judging from appearances it was perfectly harmless. The railsoad company knew that the boys in the neighborhood were in the hkbit of riding around on the turntable. While so riding plaintiff got his foot caught and received an injury which resulted in the amputation of his foot. The court among other things said:

“The evidence is not strong, and the negligence is slight, but we are not able to say that there is not evidence sufficient to justify the verdict.”

In Union Pac. R. R. Co. v. McDonald, supra, the railroad company in connection with its railroad business operated a coal mine which was reached by a path. Along this path the company had dumped a large quantity of slag, which had been going on for some two years. Under the slag there were live coals of fire which could not be readily ascertained by inspection. There was a statute in the state of Colorado where this case arose, requiring slag piles under those conditions to be fenced, and making railroad companies liable for injuries sustained by failure to so fence. Plaintiff, a boy twelve • years of age, was going north along the path by this slag pile when he got frightened and ran and lost his balance and fell on it and was burned. Among other things the court said:

“The surface was a mere covering of ashes, sufficient in depth to conceal from view the fire underneath. Except when there was rain, snow, or wind, no smoke would be emitted from the slack pit, nor would there be any visible indications of the existence of the burning coals under the ashes covering the slack. ’ ’

The court held the defendant liable in that case.

The attractive nuisance doctrine is discussed in 29 Cye., pp. 447-449, 'the chapter on Negligence. The rule is there stated substantially as contended for. by appellant, except that appellant leaves out one essential element of the doctrine, and that is that the child must bo of such tender age and so inexperienced as not to be able to fully comprehend the danger. The author states without qualification, and the statement is borne out by the authorities, that a defendant will not be liable where the danger is obvious and known, and the child has sufficient intelligence to appreciate it, even though the defendant has notice that children are accustomed to come about the place of danger.

That principle is apparent in the authorities relied on ' by appellant. The doctrine has no application to a case where the danger is obvious and the child is of sufficient age and discretion to fully comprehend the danger. The doctrine applies only where the thing that caused the injury is an attractive and also an alluring nuisance. It must be deceiving to the child. It must be a bait which the child will follow “as mechanically as a fish.” It must be certain to attract, and the danger must be hidden to the inexperienced child. We have no such case as that here. On the contrary, this is a case where the danger of the machinery causing the injury was apparent to every one. Appellant freely and positively testified that he knew of the danger and had avoided it, and intended .to avoid it. The danger was not hidden; it was not alluring; it was not a bait. Therefore we have simply a case where the plaintiff, a trespasser, was injured by an unfortunate accident. It is a case where appellee owed appellant no duty except not to willfully or wantonly injure him. There is no pretense of any case as a result of willful or wanton conduct on the part of appellee.

Affirmed.