This is an appeal by defendant from a judgment for damages in the sum of $7,500 for medical expenses incurred by plaintiff, and for loss of her son’s services on account of injuries sustained by him when he came in contact with certain electric equipment in a substation on the premises of a grain elevator located in North Kansas City, Missouri. The grain elevator in question is owned by the Chicago, Burlington & Quincy Railroad Company, and the defendant herein, Norris Grain Company, was the lessee and operator of the elevator at the time of the accident.
The petition alleged that for many years pigeons in great numbers had gathered in and about the electric substation on defendant’s premises; that for many years boys and men had been in the habit of going on the premises to catch pigeons, with the knowledge of defendant which had made known to such boys and men that the pigeons were a nuisance and that it desired to be rid of them; that defendant made known to plaintiff’s son and others that they had permission and approval and the invitation of defendant to catch pigeons on the premises; that on July 17, 1943, her son went on the premises for such purpose, with the consent and approval and by invitation of defendant, and climbed a stairway leading to a platform adjacent to the substation; that he was unaware of the dangerous nature of the equipment in the substation and was not given reasonable warning by defendant of such condition ; that in attempting to catch a pigeon he stood upon the railing of the stairway and reached across a fence between himself and such electric equipment and touched or came into such close proximity to such equipment that he received a high voltage electric shock and was injured; that defendant knew or by the exercise of due care *11 should have known that boys would be likely to come on the premises to catch pigeons and to go up the stairway, climb onto the railing, and come in close proximity to dangerous electric currents and be injured or killed; that defendant with such knowledge negligently consented to and approved the practice of large numbers of boys coming on the premises to hunt pigeons; that defendant so negligently constructed and maintained the substation as to constitute a dangerous trap and condition for young persons on the premises who were unfamiliar with the nature of the equipment thereon; that defendant negligently failed to give reasonable warning of this condition and failed to make said condition safe for persons using the premises as aforesaid; that defendant knew or by ordinary care could have known that persons so using the premises would not discover such condition or realize the risk thereof; that defendant negligently failed to maintain any locked door or gate at the entrance to the passageway leading -to the substation and failed to maintain fences, screens or walls so as to prevent entrance by persons to such equipment and contact therewith; that there were metal plates on the substation fence which were grounded and which made an extremely dangerous condition for a person who reached across them and came into contact with the electric equipment; that defendant negligently failed to provide guards constructed of nonconducting materials which were not grounded; that defendant negligently failed to construct the substation in compliance with certain regulations of the National Electrical Safety Code; and that there was a general practice in the business to comply with said Code.
Defendant’s answer denied all allegations of the petition except the fact of its incorporation and operation of the grain elevator, and pleaded contributory negligence on the part of plaintiff’s son.
The substation in question was located in an area between three separate buildings on the premises of defendant, namely, the head house or main elevator building on the north, the drier house on the east, and the engine house on the south. The three open spaces between these buildings were closed off by three small mesh, woven wire fences. Thus the substation was entirely enclosed by the three buildings and the three woven wire fences. One such fence (where plaintiff’s son was injured and hereinafter called “the north fence”) was on the north side of this area and ran east and west between the west side of the drier house and the east side of the southerly projection of the head house. There was no gate in the north fence. The only entry to the enclosure was through a gate in the wire fence across the west end of the area, which gate was kept locked because the substation was self-functioning and the presence o' defendant’s employees in the enclosure was not required. Whenever the equipment needed attention it was taken care of V *12 Power & Light Company or the Burlington Railroad. Power lines carrying 13,200 volts entered the substation from a pole located east of the drier house. A passageway about five feet wide and twenty-seven feet long extended ¡from east to west between the head house on the north and the drier house on the south. The only entrance to the passageway was- on the east and there was no gate or - door at the entrance. This passageway was L-shaped because it turned left or to the south behind the drier house, at its west end. The far end of this passageway was closed off by the north fence which, with the’ adjoining buildings, formed a part of the enclosure of' the substation, as explained above. At the end of the passageway,' and outside the fence, a stairway led up to a platform- alongside the east end of the -fence and next to the drier house, giving access to a door in the drier house. The wire fence was 15V£> feet high. That portion of the fence back of and above the platform, and extending two of three feet- to the .west of it, was composed of two solid metal plates 7 feet, 8*/2 inches in height, instead of the wire fencing used elsewhere, in order to prevent long, narrow objects, such as tools or pipes, being thrust through- and into contact- with the electric equipment • on the other side of the fence'. The platform was 7 feet,-10 inches above the'ground. The railing which guarded the west side' of the platform was 31 inches above the platform,' and the distance from the - top of the railing to the tdp • of the metal plates', which formed a part ■ 'of the fence, was 5 feet or'5 feet, 1% inches.
Plaintiff’s son, James Twine (hereinafter called Twine), was injured on July 17, 1943, while attempting to catch pigeons on the premises of the grain elevator. Twine, who was then just over sixteen years of age, was employed with other boys by the Burlington- Railroad on a section gang which had' been working around the grain elevator for two or three'-days before his injury, cutting weeds and grass. The acciden/t occurred sometime after three p-. m., while Twine was on -his way home after he had finished his work day and had checked out at the section gang’s shanty some distance south and west of the elevator. When Twine and two other members of the gang- (Nooner and Cruce) neared the elevator one of them suggested 'that they attempt- to catch some pigeons, and in so doing they went down the passageway described above. Twine saw some pigeons fly up over the fence at the far end of the passage-why, and he went up the stairway mentioned above, climbed onto the railing guarding the outside of the platform, and in an effort to scare up a pigeon he reached over the metal plates which formed a-part of the fence at that point and with his left hand tapped the ’over of a lightning" arrester inside the substation while his right k-Hd rested oh the metal plates which were grounded. As a result, Twine received a severe electric shock and burns' which made *13 it necessary, to amputate his ■ left arm two inches; below ■ the elbow. Twine testified that the-top of•-the-metal plate's- on the-fence, -as he stood oh the railing, reached -about up to his chin-; that, he' could see what was on'the other side but had'to-reach--over the top of the.fence in order to tap the cover of the lightning-arrester.
With -regard to the pigeons, all of the witnesses who had been around-the grain elevator testified that they had seen many pigeons there. Plaintiff’s evidence was-that at the time Twine’was -injured,- and for several years before -that date, ■-pigeons in:large numbers gathered on defendant’s premises. Several witnesses -testified.that they saw pigeons inside the ■ substation, on the north fence of the substation, and in the- passageway-leading to the north fence.
Four teen-age witnesses who lived about a mile south of the elevator -testified as plaintiff’s - witnesses that they had hunted pigeons on defendant’s premises prior to the accident when they were around eight to thirteen years of age. All but one of them-had stopped the practice prior to the time Twine worked near the elevator.! -- One said he had been there “a great many times”; another said - he: had hunted' pigeons there- “two or' three dozen times.” - Two of these witnesses said that Lakey, -the defendant’s foreman, gave them permission to-hunt pigeons- and that he said the pigeons-were a nuisance. The same witnesses testified they-had seen many other boys hunting pigeons on the premises; that it was usual for boys: to' drive the pigeons down the passageway, which formed, a trap for them at the' far end, so that they could be-caught with-the hands. Sometimes the boys would stand-on the railing, on the platform-and reach up and take pigeons off the top. of the metal plates.' The testimony :of a-former employee of defendant was to the same effect. This witness also said that on mimerous occasions prior to Twine’s injury he saw Lakey standing near the entrance to - the passageway- when boys were going in and out of the pássageway. Pláintiff’s evidence- also showed that Lakey gave orders 'to men working around the elevator and ’ that these men obeyed such orders. Twine* and Nooner, who had been working-around the elevator three of four days before the accident, testified-that during that period they saw "other boys “ enter the* passageway and come out with-pigeons. Twine' admitted on cross-examination that he was not acquainted with and had not talked to any of the boys mentioned above, except Nooner; that he had never been near the elevator and-did not know'what people did-there until he went to work on the section gang; and that he had never seen anyone climb • up' on the platform to ea-tch pigeons;
Twine and Nooner also testified that sometime • before • noon' on - the day of the accident they heard some other member of ther section gang ask a man whether it was 'all right to go inside catch pigeons, and the man answered in the affirmative ar1 re_ *14 marked that the pigeon's were a nuisance. The boys were working close together at the time. Nooner “believed” this man was the elevator foreman. Twine thought he was the man he had seen in the courtroom the day before and who had been identified as Lakey, the elevator foreman. Twine admitted on cross-examination that at the time he did not know who the man was, nor by whom he was employed; that he did not ask anyone if he could catch pigeons; and that he was not “invited” to. catch pigeons. Lakey, who was called as a witness for plaintiff, denied that he had ever given anyone : permission to hunt .pigeons and testified that for many years the company had a rule prohibiting such a' practice, even by employees; that since long before the accident the defendant had made every effort to enforce íhé rule and to prohibit trespassing, and that he had no authority to waive the rule. Lakey also testified on cross-examination that the pigeons did not interfere with the operation of the elevator, and denied that any effort was made to get rid of them.
Several boys and a former employee of defendant testified as plaintiff’s witnesses that on numerous occasions before the accident they had been in the passageway and around the north fence where Twine was injured, and;that they never saw a warning or danger sign on that fence or in the passageway; but two of these witnesses'said there-were one or two “No Trespassing” signs on other parts of the premises. Twine and the boys (Nooner and Cruce) who were with him at the time .of the accident denied that a warning sign was on the north fence when Twine was injured. Cruce was not certain of this, and admitted that there -was a “No Trespassing” sign on a brick building which was not clearly identified.: Several employees of defendant testified as witnesses for defendant that a “Danger- — -High Voltage” sign had been on the north fence for many years, and that there were “No Trespassing” or “Keep Out” signs about the premises. An employee of the Power & Light Company who answered a trouble call following the accident, and a photographer sent by that company, testified that they arrived at the elevator within an hour or two after the accident, and that when they arrived a “Danger — High Voltage” sign was on the north fence, and that it was legible.
Twine testified that when he was in the passageway he saw the equipment on the other side of the wire fence but did not know that it was electric equipment. On cross-examination, he said that he had studied ■ and passed a general science course in high school but denied having studied the two chapters in the text which dealt with electricity.
Defendant’s first point is as follows: “The court erred in refusng defendant’s motion for a directed verdict at the close of all the cadence because James 'Twine was not an invitee on its premises.
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and it owed Mm no duty to make them safe or to warn him against any danger therein.” Defendant’s first position is: “A. Permission to hunt pigeons on the premises was not given by anyone having authority to do so.” Hence, Twine was a trespasser to whom defendant owed no duty with respect to the negligence charged. Defendant’s second position is: “B. The hunting of pigeons was of no real benefit or interest to defendant and permission to do so would make Twine only a bare licensee at best.” Consequently, the defendant owed Twine no duty to make the premises safe or to warn him of any existing danger thereon. As to defendant’s point I-B, both parties briefed at length the question of whether defendant’s foreman, Lakey, had express or apparent authority to give such permission and, if he had apparent authority, whether Twine relied upon such authority; and other points relating to the question of whether Twine went on the premises to catch pigeons with the express or, implied consent of defendant. However, the conclusions which we have reached in this case make it unnecessary to consider defendant’s point I-B. Viewing the evidence in the light most favorable fio plaintiff, as we must, we have concluded that plaintiff did not make out a ease for the jury, even if Twine entered the premises with the express or implied consent of defendant, because he was not on the premises at the time in question for any purpose of real benefit or interest to defendant; and because his injury was not the result of any active or affirmative negligence on the part of defendant. It should be noticed in passing that plaintiff’s case is not based on the attractive nuisance doctrine. Cf. Hull v. Gillioz,
The Missouri decisions classify persons who enter land in the possession of another as trespassers, licensees, and invitees. A trespasser, of course, is one who comes on the premises without the consent of the possessor and without a privilege to do so created by law. See the following cases where the duty of a land occupier towards a trespasser is discussed. Kelly v. Benas,
The above mentioned distinction between a licensee and an invitee is recognized in a long line of Missouri decisions. The leading ease on the subject is Glaser v. Rothschild, supra, decided in 1909 by the court en Banc. In Stevenson v. Kansas City Southern Ry. Co.,
Plaintiff seems to contend that our Supreme Court has adopted sec.. 342 of the Restatement as the law of Missouri, and that the rule stated there should be applied in the instant case. The Stevenson case does not support this view, for the. court said (
In Porchey v. Kelling,
Assuming, then, that Twine went on the premises to catch pigeons with the express or implied consent of defendant, the decisive question in this case, according to the authorities cited above, is whether he was there for his own purpose or for some purpose of real benefit or interest to defendant.
The evidence showed that for many years pigeons in large numbers gathered on defendant’s premises. One of plaintiff’s witnesses said they were “all over the place.” The grain around the elevator made a natural feeding place for them and there was a water fountain outside the office- window where they could drink: There were several other grain elevators in the vicinity. Under such circumstances, it would be extremely difficult, if not impossible, to prevent the pigeons from gathering on defendant’s premises. It is obvious that comparatively few could be caught by hand, so' that the intermittent hunting of pigeons would not noticeably reduce their number. There was evidence that defendant’s superintendent shot at pigeons on two occasions, and that, as previously stated, when defendant’s foreman told the boys they cou-ld catch pigeons on the premises he remarked that the pigeons .were a nuisance. But there was no substantial evidence that defendant made any serious effort to get rid of the pigeons, and no evidence whatever that they interfered with the „ operation of the plant or caused any measurable loss of grain. We agree with the statement in defendant’s brief that the foreman’s remark was a mere casual comment “in a'bout the same category as a farmer’s hired hand giving permission to á passer-by to pick dandelions or some other plentiful wild flowers * * * and remarking that they were just a nuisance.” The evidence most favorable to plaintiff does not show that at the time of the unfortunate accident Twine was on defendant’s premises for any purpose of “real benefit or interest”' to defendant. It follows that Twine’s status was that of a licensee to whom defendant owed no duty to make the premises safe or to warn of dangerous conditions thereon. This leads to the conclusion that plaintiff did not make out a submissible case unless' the evidence Showed, as plaintiff contends, that her son’s injury was caused by “active or affirmative negligence” on the part of defendant.
Plaintiff refers to the substation as a dangerous artificial condition, and contends that defendant was under a duty to make the condition safe for Twine or to warn' him of such condition.Plaintiff’s petition and Instructions 1 and 2, given at the request' of plaintiff, are evidently based on this theory. Nevertheless; plaintiff also contends that' the operation of a highly charged substation without- proper safeguards or sufficient warning was “active or affirmative negligence” on the part of defendant. In this con
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nection plaintiff claims that the cases cited above, snch as the Stevenson case (where a building collapsed) and the Porehey case (where plaintiff fell into an open pit), are not controlling here because they involve injuries caused by the condition of the premises, whereas Twine’s injury was caused by active or affirmative negligence. It is true, of course, that a land occupier is subject to liability for bodily ’harm caused tó a licensee by the- active or affirmative negligence of the occupier. - Most'of'the chses applying this principle are railroad cases where the train crew negligently failed to avoid injuring a trespasser or licensee whose presence on the track was known or should have- been anticipated. ’ A typical case is Ahnefeld v. Wabash Railroad Co.,
Since the evidence does not show that plaintiff was on the premises in question for any purpose of real benefit' or interest to defendant or that his injury was caused by'active or affirmative negligence on the part of defendant, it follows that plaintiff did not make out a case for the jury. '
Plaintiff relies upon the case of Smith v. Southwest Mo. R. R. Co.,
Plaintiff also relies upon the case of Schneiter v. City of Chillicothe,
For the reasons stated,- we hold that the trial court erred in refusing to direct a verdict. f.or defendant at the close of all the evidence.. *21 Other assignments of error need not be considered. The judgment should be reversed.
The foregoing opinion of Bour, C., is adopted as the opinion of the court. The judgment is reversed.'