90 Mo. 284 | Mo. | 1886
Lead Opinion
The plaintiffs are husband and wife and parents of a child three years old, Louisa, whose death occurred November 2, 1883, upon the premises of the defendant, and plaintiffs allege that it was caused by the negligence of the defendant.
The petition is as follows: “Plaintiffs state that they are now, and were, at and prior to the date hereinafter mentioned, husband and wile, and father and mother of Louisa Schmidt, their child, born on the twenty-ninth day of October, 1879. Said Louisa Schmidt was killed in the manner hereinafter stated,, and at the time of her death was a minor and unmarried. That the defendant now is, and was, at and prior to the-dates hereinafter mentioned, a business corporation, duly organized as such under and by virtue of the laws-of the state of Missouri, and engaged in the business of buying and selling and refining grain, and for that purpose kept and still keeps and maintains distillery buildings, and in connection with said buildings, and in its business, defendant erected and maintained, and was, at the time hereinafter stated, using a large number of steam engines and boilers, to-wit, six, in the county of Jackson, and state of Missouri, east of and near the City of Kansas; that the defendant, on and prior to the second day of November, 1882, kept and maintained an. escape pipe in connection with said boilers for the purpose of blowing off hot water, debris and steam from the same; said pipe extended from the distillery, where the boilers were, under and across a traveled public road and highway, and terminated above ground in an open space about sixty feet north of said traveled, public road. Through this pipe defendant, from time to time, as occasion required in its business, blew off and. discharged hot and boiling water, debris and steam from said boilers ; and said water, steam and debris were discharged and thrown upon open ground and about sixty
“Plaintiffs say defendant wrongfully and negligently kept and maintained said pipe, as aforesaid, and wrongfully and negligently left the end and outlet thereof contiguous to said publie road unprotected, and in an exposed, open. and dangerous condition, and wrongfully and negligently, while said pipe was so-unprotected, discharged from time to time hot and boiling water, debris and steam through the same onto the open ground near said road and highway and dwelling, houses; that, on the second day of November, 1883, while defendant so kept and maintained said pipe, for the purposes and in the manner aforesaid, Louisa Schmidt, a child of plaintiffs’, without fault of plaintiffs, went to the end and outlet of said pipe, near said, road, and while there on the day aforesaid, the defendant suddenly, without having given any signal or warning of any kind, blew out hot and boiling water, debris and steam through said pipe, left exposed as aforesaid, onto the ground and into a depression or hole thereon at the end of said pipe, and said child, then and there „ being, fell into said boiling water and the said debris, and the said Louisa Schmidt was thereby scalded and burned to death, and did from the effects thereof on the same day die.
“Plaintiffs say that the death of their said child was caused by the wrongful acts, neglects and defaults of defendant.
; ‘ By reason whereof plaintiffs are damaged in the sum of five thousand dollars, and an action hath accrued
The evidence in the case tended to show that plaintiffs were husband and wife, and the lawful parents of Louisa Schmidt, the deceased. That said Louisa Schmidt, an infant and unmarried, three years and three days old, died on the second day of N ovember, 1882, of the injuries received the same day and some three hours earlier, on the defendant’s premises. That the defendant was the owner and operator of a distillery east of and near the City of Kansas, on the south side of the Missouri river; that the distillery buildings were situated on the south side of a public road forty feet wide, which runs northeast and nearly parallel to a slough, which was formerly a main channel of the river, but which has recently been to a great extent filled up, and that across the slough, and between it and the river proper, are situated the cattle-sheds of the defendant, which owns the property from the public road to the river, which is about one thousand feet north of the road. Along its western boundary a causeway or private road of defendant extends across the slough to its cattle-sheds. Along its eastern line, from the island across the slough to the public road, the defendant had a fence, which was also extended up to the public road, to the west or southwest until it joined some buildings, which continue the fence up to within some seventy-five • or eighty feet of the corner of the public road and the causeway aforesaid, and for this distance along the public road, and also along the causeway, there was no fence or other erection to prevent people from entering the grounds of the defendant between the public road and the slough. This public road was considerably traveled by the neighbors, the gardeners, and others living down the river, and the distillery employes. The slough was filled with water which rose and fell with the
Plaintiffs obtained a judgment for five thousand dollars, from which defendant appealed. We will not notice any of the instructions, given or refused, except the first of defendant’s refused instructions, which declared, that: “Upon the pleadings and evidence in the case, the plaintiffs are not entitled to recover, and the jury will find their verdict for defendant.”
Waiving, for the present,, a consideration of the •question relative to the sufficiency of the petition, and ■conceding, for the argument, that it states a cause of action, did the evidence establish such a state of facts as renders defendant liable ?
It is a well established general proposition of law, that the owner of property is under no obligation to keep it in a condition which will insure the safety of persons who go upon it without his license or invitation. Hughes v. Railroad, 66 Mo. 325 ; Turner v. Thomas, 71 Mo. 596 ; the case of Nagel v. Railroad, 75 Mo. 653, belongs to a class of cases which qualify the general doctrine, and hold, that where the owner permits, upon his premises, dangerous machinery, or other dangerous things, likely to attract children, and does not guard it to prevent injury to them, he is liable for any injury they, may sustain, in consequence of his neglect to place guards about it. The evidence in this case does not
An owner of property cannot place temptations upon it, to allure any one to a dangerous place upon its premises, and escape liability for injury, that even a trespasser may sustain, in yielding to the temptation to go there. Nor can he place dangerous, unguarded machinery, or other dangerous things, so near a public street or highway, as to endanger persons thereon, without liability for damages to one occasioned thereby; but, to assert a proposition stronger than these, against the owner of property, wfere to deny his dominion over it and compel him to use it, not for his own, but for the public convenience. The petition should have averred, either that the place, where Louisa lost her life, was attractive to children, by reason of the escape-pipe discharging the boiling water there, or that children in.
Rehearing
On re-hearing.
Counsel for respondents are in error in their suggestion, that we overlooked some of the facts in the case, or the instructions asked by defendant, submitting to the jury the question of the attractiveness of the escape-pipes, etc., to children. The bill of exceptions, so far as relates to the testimony, was literally embodied in the opinion, and upon the facts, which the evidence tended to prove, this court unanimously held, that a demurrer to the evidence should have been sustained.
This was the principal and only ground, upon which the reversal was based ; but we still think, as was said in the opinion, that: “ The petition should have averred, that the place where Louisa lost her life, was attractive to children, by reason of the escape-pipe discharging boiling water there, or that children in the neighborhood were in the habit of resorting there to play, or to witness the escape of the water and steam from the pipe. Some fact should have been stated, to show that defendant was not properly exercising its dominion over its own property.”
Could any court, upon the facts alleged in the petition, disregarding the general allegation of negligence, say that the defendant was improperly using its property \ That the escape-pipe was per se a nuisance, or that, discharging the boiling water upon defendant’s own premises, sixty feet from the highway, in the neighborhood and vicinity of several inhabited dwell