Plaintiffs, the infant children of John Stanley Zuber, deceased, instituted this action against defendant seeking the recovery of $15,000 for tbe wrongful death of their father.
Defendant, Clarkson Construction Company, filed its motion to dismiss plaintiffs’ petition on the ground the petition failed to state a claim upon which relief could be granted against defendant. The trial court sustained defendant’s motion and entered a final judgment of dismissal. Plaintiffs have appealed.
Plaintiffs in stating their claim alleged in their petition that on and prior to May 29, 1949, the defendant was engaged in constructing an earthen embankment or levee on the south bank of the Missouri River in the vicinity of 1700 North Monroe in Kansas City; that
in doing this work defendant owned, used and operated certain large diesel or other motor-driven, earth-moving tractors and trailers known as “Euclid Carry-alls”; that at the end of the day’s work defendant customarily and for many days parked the Carry-alls on the levee or some public place adjacent thereto with .the machinery in gear and the switches and ignitions unlocked, with, fuel in the tanks, and with the brakes off and not in operating condition .ready to be easily put in operation; that each evening curious adult persons gathered around the' machinery and inspected it and some of the persons started the tractors and operated them up and down the levee to demonstrate how they worked and that such was the usual and customary proceeding each evening; that the defendant knew, or by the exercise of ordinary care could and should have known, prior
In determining if a petition states a claim or cause of action, the averments of the petition are to be given a liberal construction, according the averments their reasonable and fair intendment — fair implication should be indulged from the facts stated. So considered, a petition should be held sufficient if its averments invoke substantive principles of law which entitle plaintiff to relief. A petition is not to be held insufficient merely because of a lack of definiteness or certainty in allegation or because of informality in the statement of an essential fact. Boyer v. Guidicy Marble, Terrazzo & Tile Co., Mo. Sup.,
Plaintiffs-appellants contend their petition states facts imposing the duty upon defendant to take precautions to protect decedent from harm; that defendant was negligent in failing to discharge its duty; and that, as a direct and proximate result of defendant’s negligence, plaintiffs’ decedent was fatally injured. Plaintiffs-appellants urge that defendant’s earth-moving tractors and trailers were left in gear in a public place with ignition switches unlocked and with inoperative brakes; and that defendant knew or should have known' that on previous evenings curious people had gathered in this public place and operated the machines up and down the levee. In such circumstances, plaintiffs-appellants say, defendant owed plaintiffs’ decedent the duty, and was negligent in its duty, to take appropriate measures to protect him from danger of the machines being started and operated by persons, some of whom no doubt were untrained in the control and the operation of the machines. Plaintiffs-appellants further urge defendant’s negligence was the proximate cause or a concurring proximate cause, and the act of Canterbury in starting the Carry-all did not break the causal connection between defendant’s negligent conduct and the injury.
Defendant-respondent asserts plaintiffs’ petition fails to state a claim or cause of action, and the trial court correctly entered a judgment of dismissal. Defendant-respondent contends that it had no duty to protect plaintiffs’ decedent from injury caused by the intentional or negligent act of a responsible third person, Canterbury, and, having no such duty, defendant was not guilty of negligence. Defendant-respondent says, its Carry-alls, while heavy and powerful, are nothing more than large motor trucks and not inherently dangerous in any circumstances; and defendant could not be reasonably said to have had reason to foresee that intermeddlers would unlawfully appropriate the machines and negligently injure others. But, defendant-respondent says, if it is determined that defendant had such a duty, the causal connection between defendant’s alleged negligence and the injury was broken by the act of Canterbury — which act of Canterbury became the intervening efficient cause of the injury.
Aside from a duty to exercise care assumed by entering into a contractual relationship or imposed by controlling -statute or ordinance, the duty to exercise care may be a duty imposed by common law under the circumstances of a given case. Yol. 1, Thompson on Negligence, § 4, p. 6; 38 Am. Jur., Negligence, § 14, pp. 655-657. Negligence depends upon the surrounding circumstances, as well as the particular conduct involved, because an act or omission which would clearly be negligent in some circumstances might not be negligent in other circumstances or surroundings. Rouchene v. Gamble Const. Co.,
Relating to those dangers to be reasonably anticipated — if there is some probability or likelihood, not a mere possibility, of harm sufficiently serious that ordinary mem would take precautions to avoid it, then the failure to do so is negligence. While the likelihood of a future happening is the test of a duty to anticipate, this does not mean the chances in favor of the happening must exceed those against it. The test is not the balance of probabilities, but of the existence of some probability of sufficient moment to induce the reasonable mind to take the precautions which would avoid it. Berry v. Emery, Bird, Thayer Dry Goods Co.,
In the instant case the facts alleged are that defendant left its Carry-alls in a
It may.be fairly implied from the allegations of the petition that the curious persons, including plaintiffs’ decedent, who came to see the Carry-alls, were not trespassers; they had a lawful right to be in the proximity of defendant’s machines which, as stated, were parked unattended in a public place. Now it was alleged that defendant’s large motor-driven, earth-moving machines were left unattended in the public place without operative brakes, fueled up, in gear, and with the ignition switches in such a condition that they could be turned on and the machines started. Although the machines as they were parked and at rest on or near the levee were not especially dangerous if no human agency intervened, yet, fueled up, with ignition switches unlocked and with inoperative brakes, they were potentially dangerous, and, if one were started by some reckless person or by some intermeddler probably unskilled in the technique of its operation, it would (and did) become a monstrous instrumentality of destruction. It seems to us it could be reasonably said the person, defendant, the owner and responsible for these machines, with knowledge that curious intermeddlers were making the practice of operating the machines, had reason to anticipate or foresee that other intermeddlers would start the machines and that, among those who operated the machines, some person, though an adult, starting the machine would be reckless or unskilled. It is not too much to say that, in the circumstances averred, a reasonably prudent person should take into account these probabilities, and 'would foresee that some injury was likely to ensue.
It is true, as defendant-respondent urges, the machines have great economic importance and contribute immeasurably to the general welfare in the construction of public works; nevertheless, the effort or expense of devising and using locks, assuming the machines were not so equipped, or the taking of other precautionary measures rendering the machines immobile or inoperable, thus obviating the stated foreseeable danger, would seemingly be not too onerous or out of proportion to the hazard involved. Restatement, supra, § 302.
We believe it should not be held that the facts stated in the petition are insufficient in invoking substantive principles of law entitling plaintiffs to relief.
The judgment should be reversed, and the cause remanded.
It is so ordered.
The foregoing opinion by Van Osdol, 0., is adopted as the opinion of the court.