Opinion
No. 27014.
April 9, 1928.
1. NEGLIGENCE. One maintaining dangerous instrumentality easily accessible to children is liable to child non sui juris injured thereby without knowledge or appreciation of danger.
One who maintains dangerous instrumentalities or appliances on his premises easily accessible to children, and of a character likely to attract them in play, or permits dangerous conditions to remain thereon with knowledge that children are in habit of resorting thereto for amusement, without exercising ordinary care to prevent children from playing therewith or resorting thereto, is liable to child non sui juris, who was injured thereby, and who did not know and appreciate danger.
2. NEGLIGENCE. Landowner has right to maintain dangerous instrumentality attractive to children when exercising ordinary care to prevent injury.
A landowner has a right to maintain a dangerous instrumentality on his premises that is attractive to children, provided he exercises ordinary care to prevent them from being injured while playing therewith.
3. NEGLIGENCE. Recovery could not be had on theory of attractive nuisance for injury to trespassing five year old boy, resulting after warning to stay away from place.
Where trespassing five year old boy, who was injured by revolving shaft in conveyor from cotton gin to seedhouse, after having been warned by owner's employee to stay away, recovery could not be had for injury on theory of attractive nuisance, since owner's only duty was to exercise ordinary care to prevent him from obtaining access to, and being injured by, conveyor.
APPEAL from circuit court of Attala county; HON. JOHN F. ALLEN, Judge.
C.E. Morgan and J.D. Guyton, for appellant.
The whole case is predicated on the "attractive nuisance doctrine." Some of the states refuse to recognize this doctrine; and therefore the decisions in such states are not helpful to us — for in Mississippi this doctrine has been many times sustained and upheld as sound. "A peremptory instruction will be error unless the evidence, conceding it to be absolutely true, discloses no legal right in the party against whom the instruction is given." Fore v. Alabama R.R. Co., 87 Miss. 211, 39 So. 493, 690. "It is only in cases free from doubt that the court will withdraw a case from the jury." R.R. Co. v. Doyle, 60 Miss. 977. "The defendant is not entitled to a peremptory instruction when the evidence adduced, with the legitimate conclusions drawn therefrom would uphold a verdict for the plaintiff." State v. Spengler, 74 Miss. 129, 21 So. 4.
The attractive nuisance doctrine might here be stated in the language of the courts and law writers: Quoting 1 Thompson on Negligence, sec. 1024: "One who artificially brings or creates upon his own premises any dangerous thing which from its nature has a tendency to attract the childish instinct of children to play with it, is bound, as a matter of social duty, to take such reasonable precautions as the circumstances admit of, to the end that they be protected from injury while playing with it, or coming in its vicinity." Criticising the states which refuse to uphold this doctrine, Judge THOMPSON, sec. 1030, says: "This cruel and wicked doctrine, unworthy of a civilized jurisprudence, puts property above humanity, leaves entirely out of view the tender years and infirmity of understanding of the child, indeed his inability to be a trespasser in sound legal theory and visits upon him the consequences of his trespass just as though he were an adult." Lynch v. Nurdin, 1 Q.B. 29, decided in 1841, is generally regarded as the origin of this doctrine; but its origin in this country seems to date from 1873 when the supreme court decided the case of Stout v. Sioux City U.R. Co., 17 Wall. 657, 21 L.Ed. 745. Mr. Justice HUNT, in writing the opinion of the court in this case, after declaring that the fact that the turntable was a dangerous machine likely to cause injury to children who resorted to it to play might be inferred from the fact of the injury, and that the jury was justified in believing, upon evidence, that children had been at play upon the turntable on other occasions, that they would probably resort to it, and that the defendant should have anticipated that such would be the case, said that this could certainly have been prevented by locking the turntable, which could have been done at an inconsiderable expense. In City of Perkins v. McMahon, 154 Ill. 141, 39 N.E. 484, the city owned several lots partially inclosed where it dug sand and gravel. Rains had made a pond out of these holes, and in this pond floated logs and chunks. A child of tender years was playing there riding on the logs and on the log turning with him he fell off and was drowned. On being sued for damages, the city pleaded the general issue, inclosed lots, child a trespasser, and accident. The court in that case said: "The general rule is that owner of land is under no obligation to strangers to keep premises in safe condition. But this is an exception to the rule which is as firmly established as the rule itself."
In Dublin Cotton Oil Co. v. Jarrard, 40 S.W. 531, the Texas court of appeals (affirmed by supreme court in 42 S.W. 959, 91 Tex. 289[ 91 Tex. 289]) a school girl who had been warned by the teacher not to go in the oil mill, went into the mill with a companion, was seen there by workmen in a room where the machinery was not running, and a few minutes later she went into another room where the machinery was running, and was there jumping over a trough on the floor in which was a revolving shaft, a screw conveyor just like the one in the case at bar, which carried the cotton seed on to the crushers, the top of which was open, and in some way while thus playing she fell into this trough and mangled one of her feet. In Keffe v. Milwaukee R.R. Co., 21 Minn. 207, one of the early cases in which the turntable doctrine announced in the Stout case was taken up and elucidated, the injured child was not considered a voluntary trespasser, the court saying that the turntable, being attractive, presented to the natural instinct of young children a strong temptation. In Chicago E.R. Co. v. Fox, 38 Ind. App. 268, 70 N.E. 81, a six and one-half-year-old child was injured while playing on an unfastened turntable. The reasons for imposing liability in the turntable cases might be summed up as follows:
1. That the turntable is easily accessible to children. 2. That it is peculiarly attractive to children, and calculated to entice them. 3. That, when set in motion, it is a source of latent danger. 4. That it was left unguarded and unfastened, although at slight expense it could have been guarded and fastened. 5. That the company knew, or ought to have known that children did or would resort there to play, and ought to have anticipated they would in such event be injured. At tractive nuisance doctrine has often been applied to dangerous machinery in places where children were accustomed to play. In Whirley v. Whitman, 1 Mead. 610, the owner of unprotected cog-wheels revolving, located in an open space, twenty feet from a street, is liable for an injury to a three-year-old-child. In McAlister v. Seattle B. M. Co., 44 Wn. 179, 87 P. 68, it was held that the question whether a sheave or pulley wheel placed in the center of a car track, and used in connection with a wire cable for moving cars for the use of a brewery, belonged to that class of dangerous machinery. In Nashville Lumber Co. v. Busbee, 100 Ark. 76, 38 L.R.A. (N.S.) 754, a chain run by a sprocket wheel to carry refuse from a box factory unguarded and exposed. Francecetti v. Spring Valley Coal Co., 205 Ill. App. 577, an overhead trolley along which cars were carried by means of a revolving rope, pulleys and sprocket wheels, as a means to carry off waste. Berg v. B.B. Fuel Co., 122 Minn. 323, a conveyor running in a trough in the bottom of which was an endless chain which carried bark and refuse away. Union Pac. R. Co. v. McDonald, 152 U.S. 262, a slack pit near the common passway that led to a mine. Strollery v. Cicero St. R. Co., 243 Ill. 290, affirming 148 Ill. App. 499, a coal conveyor consisting of an endless chain running in a trough and over sprocket wheels, used to bring coal from coal bin to boiler.
In Mississippi the attractive nuisance doctrine is adopted as above outlined. It is applicable to turntables and other places and machinery as well. See Mackey v. Vicksburg, 64 Miss. 777, 2 So. 178, a path leading up a steep hill at rear of plaintiff's home where excavations had been made. Spengler v. Williams, 67 Miss. 1, 6 So. 613, piled lumber in a street where children were wont to play. Temple v. McComb City, 89 Miss. 1, 42 So. 874, an electric wire through an oak tree in the street with limbs near the ground. City of Vicksburg v. McLain, 67 Miss. 4, 6 So. 774, excavated a street near a public school. Dampf v. Y. M.V.R. Co., 95 Miss. 85, 48 So. 612 a turntable case.
The foregoing authorities establish pretty clearly that the attractive nuisance doctrine is based on implied invitation and on childish instinct and curiosity and inability to judge his danger. The facts of this case make it fall squarely in line with the above authorities, and every requirement is met by the evidence. Whether or not the defendant in this case was guilty of any negligence that proximately contributed to this child's terrible hurt and injury, was a question for the jury to determine. Under our comparative negligence statute, all questions of negligence and contributory negligence are for the jury. Under another familiar statute, the jury are the sole judges of the weight of the evidence. M.C.R. Co. v. Mason, 51 Miss. 234; Nesbitt v. Greenville, 69 Miss. 22, 10 So. 452, Ala. R. Co. v. Summers, 68 Miss. 566, 10 So. 63; McMurtry v. R.R. Co., 67 Miss. 203, 19 So. 96; Patera v. Brookhaven, 95 Miss. 774, 49 So. 617; So. Ry. Co. v. Floyd, 55 So. 287; Dampf v. R.R. Co., 95 Miss. 85, 48 So. 12; A. V.R.R. v. Groom, 52 So. 703. A child under seven years of age is conclusively presumed to be not capable of contributory negligence. Westbrook v. M. O.R. Co., 66 Miss. 650, 6 So. 321; City of Pass Christian v. Fernandez, 100 Miss. 76, 56 So. 329; Mackey v. Vicksburg, 64 Miss. 777, 2 So. 178; Vicksburg v. McLean, 67 Miss. 4, 6 So. 774; Hamlin v. Gano, 76 So. 633; Pascagoula St. Ry. Co. v. Brondum, 96 Miss. 28, 50 So. 97; Hines v. Moore, 124 Miss. 500, 87 So. 1. In 36 A.L.R. 1, there are several cases on the attractive nuisance doctrine. Beginning on page 34 and ending on page 294 is an exhaustive note which covers, it would seem, every phase of this doctrine. All questions, under proper instructions, should have gone to the jury for determination.
Watkins, Watkins Eager, and H.T. Leonard and S.E. Crawley, for appellee.
This court has so ably covered the attractive nuisance doctrine in its opinion in the case of Salter v. Deweese-Gammill Lumber Co., 137 Miss. 229, 102 So. 268, that we deem it unnecessary to do more than refer to this opinion. In that case this court held that there was no liability even where it was shown that the child was invited upon the premises by implication for the reason that the danger was obvious and the child of sufficient age and discretion to comprehend the danger. As the court in the opinion said, before a recovery can be permitted: "It must be deceiving to the child." In the case at bar the child was in nowise deceived but well understood and recognized the fact that he would be injured, and furthermore, there is nothing to show an invitation of any kind in the evidence. Here as in the Salter case, as was said by the court, "we have simply a case where the plaintiff, a trespasser was injured by an unfortunate accident." We also direct the particular attention of the court to the very recent decision in the case of Totty v. Lee County Gin Company, 110 So. 125, involving an injury resulting from a child playing around a screw conveyor in a seed house used in connection with a gin just like the seed house and conveyor in the case at bar, and this court speaking through the Chief Justice used the following language in the opinion: "The attractive nuisance doctrine has no application here, for the reason that it is manifest from the evidence that the plaintiff knew and appreciated the danger incurred by him in using the boxing around the cotton seed conveyor as a place from which to jump to the seed pile below." In that case the trial court had directed a verdict for the defendant and such action was affirmed by this court in the above opinion. We have before us the record in the Totty case, which is No. 125900 on the docket of this court, and we find that the plaintiff was eleven years old at the time of the injury, and in company with other children was playing in the seed house and plaintiff would climb upon the boxing around the screw conveyor and near the exposed portion thereof and jump off into the seed, and while doing so got his arm caught in the conveyor resulting in injury, but on cross-examination it appeared that he got his arm caught in the conveyor as a result of his arm slipping when trying to climb upon the boxing and he knew that this machine would hurt him if he got his arm in it. This is almost identical with the facts in the case at bar, because the little Lucas boy testified emphatically that he knew if he got his hand caught in the screw conveyor it would hurt him, but he was trying to get the seed out without coming in contact with the moving part of the conveyor. The supreme court of the state of Oklahoma has considered a case on absolutely all fours with the case at bar. Turner v. Durant Cotton Oil Co. et al., 219 P. 892.
We have no complaint to make with the authorities cited by learned counsel for appellants, but the trouble is that the facts in the case at bar are in nowise applicable to the law cited in these numerous cases. Counsel seems to think that because the little Lucas boy at the time of his injury was a child of tender years is in itself sufficient to establish liability, and the only other necessary element is to prove his injury, but the authorities all agree that the rule as to non-liability to trespassers applies equally to children. So long as the child is a trespasser and is wrongfully upon the premises the owner owes it no duty except to refrain from wilful or wanton injury. 29 Cyc. page 445; 20 R.C.L. page 60, Subject "Negligence;" Highland Ave. v. Robbins, 124 Ala. 113, 27 So. 242; St. L.R.R. Co. v. Wagfigoner (Ark.), 52 L.R.A. (N.S.) 181; Peters v. Bowman, 115 Calif. 345, 47 P. 113. The rule was recognized and enforced in this court in the case of L. N.R.R. Co. v. Williams, 69 Miss. 631; Y. M.V.R.R. Co. v. Huff, 111 Miss. 486. In United Zinc Chemical Co. v. Van Britt, 258, U.S. 68, 66 L.Ed. 615, the owner of property had situated on his property a plant for making sulphuric acid and zinc sulphate. The buildings were torn down, but there was left a basement and cellar in which water, clear in appearance, accumulated, but, in fact, the same was poisonous on account of the sulphuric acid and zinc sulphate. The owner of the property was aware of the poisonous condition of the water. Two children were traveling with their parents, who camped in the neighborhood of the premises. The premises were unoccupied, and there was a path which led quite close to the water. The children went on the premises, went into the water to swim, and met their death. The supreme court of the United States held that the children were trespassers. The question was subsequently re-examined by the supreme court of the United States and reaffirmed in the case of New York, New Haven Hartford R.R. Co. v. Frutcher, 260 U.S. 141, 67 L.Ed. 173. In that case, the railroad company had erected a bridge across certain streets in the city of New York. At the top of the bridge there were cross-arms supporting wires carrying electric current used in operating trains. Boys were in the habit of climbing up there and had been driven away by policemen. The plaintiff in that case climbed up there for the purpose of catching a bird, and came in contact with the wires. Commenting briefly on the cases cited by appellants none of these cases are in point when considered in the light of the evidence in this record. In the case of City of Perkins v. McMahon, 154 Ill. 141, 39 N.E. 484, the opinion quoted from by counsel expressly shows that the child was not a trespasser but that children were allowed and accustomed to play on this property owned by the city, and the proof showed same was attractive and dangerous. In Dublin Cotton Oil Company v. Garrard, 40 S.W. 531 (Texas), the facts show that the minor girl plaintiff was seen by the defendant's workmen in a room where the machinery was running and none of the defendant's employees warned her to stay away but permitted her to remain there, and while playing she fell into a conveyor near the floor and was injured. The opinion as quoted by appellants points out emphatically the fact that in that case the child was in the building at the invitation of the owner. In the case of Kaeffe v. Milwaukee St. Paul Railroad Company, 21 Minn. 207, it is expressly stated in the opinion that the injured child was not a trespasser. In Chicago E.R. Co. v. Fox, 38 Ind. App. 268, 70 N.E. 81, was a turntable case and the invitation implied just as was true in the original turntable case in this country, that of Stout v. Sioux City P.R. Co., 17 Wall. 657, 21 L.Ed. 745. In Nashville Lbr. Co. v. Busbee, 100 Ark. 76, 38 L.R.A. (N.S.) 754, the evidence showed that children were in the habit of playing at the place of danger and that the instrumentality which caused the injury was of a concealed nature. In Francecetti v. Spring Valley Coal Co., 205 Ill. App. 577, the fact showed that the dangerous place was near a public highway and a path used by children, and that children were accustomed to go on the premises for amusement and to play there; a state of facts entirely different from the case at bar. In Berg v. B.B. Fuel Co., 122 Minn. 323, an invitation was implied from the attractiveness of the apparatus and the fact that it was of a concealed nature. In Union Pacific Railroad Co. v. McDonald, 152 U.S. 262, a child fell into a slack pit near a common passway that led to a mine. The slack pit appeared harmless on the surface but underneath the surface was burning slack.
In Strollery v. Cicero St. R.R. Co., 243 Ill. 290, the proof showed children had been accustomed to play on the defendant's premises and the instrumentality came within the attractive nuisance doctrine. The evidence showed an invitation. Counsel refer to the Mississippi cases of McKey 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; Vicksburg v. McLain, 67 Miss. 4, 6 So. 774, and Dampf v. Y. M.V.R.R. Co., 95 Miss. 85, 48 So. 612. In each one there is a state of facts different from the case at bar, and in most of these cases this court has pointed out the distinction in its opinion in the case of Salter v. Deweese-Gammill Lbr. Co., beginning at page 237 of 137 Miss. We now in conclusion wish to direct the court's attention to a few other cases from the courts of other states, which we think will be helpful; Abbott v. Alabama Power Co. et al. (Ala., 1926), 107 So. 811; City of Grandfield v. Hammonds, 227 P. 140 (Okla.); Simmons v. Chesapeake Ohio R.R. Co., 134 S.E. 503 (W. Va.); Reardon v. Spring Valley Water Co., 228 P. 406 (Calif. App.); Branan v. Wimsatt, 298 Fed. 833 (D.C.); Mason D. S.R. Co. v. Jordan, 129 S.E. 443 (Ga. App.); Zamaria v. Davis, 131 Atl. (Pa. Rep.); Louisville Trust Co. v. Horne, 273 S.W. 549, 209 Ky. 827; Hayko v. California Utah Coal Co., 235 P. 373 (Colo.); Mendiman v. Sanitary District of Chicago, 148 N.E. 304, 317 Ill. 529; Paine v. Utah, Idaho Sugar Co., 221 P. 568 (Utah); Zagar v. Union Pacific R.R. Co., 214 P. 107 (Kan.); Martino v. Ratondi, 113 S.E. 760 (W. Va.); Nelson v. Lakes Mills Canning Company, 188 N.W. 990 (Iowa). The learned trial court could do nothing else under the facts of this case than sustain the motion of appellee to exclude.
This is an appeal from a judgment denying the appellant, a minor who sued by a next friend, a recovery for damages resulting from a personal injury alleged to have been sustained by him because of the appellee's negligence. The judgment was on a verdict which the court below directed the jury to find for the appellee.
The appellee owns and operates a steam cotton gin within the corporate limits of the town of Kosciusko, Miss. The seed from this cotton gin are carried by a conveyor into a seedhouse. This conveyor is a trough in which there is a revolving shaft with a spiral flange somewhat like the threads of a bolt on a large scale. The conveyor enters the seedhouse at the top about ten feet from the floor, and the seed are allowed to fall therefrom through a hole in the bottom at the end of the trough. The seedhouse has four doors, two on the side next to a railroad track through which seed are loaded into cars, and two on the opposite side of the house near a street, through which doors seed are loaded into wagons. These doors are several feet from the ground, and are reached by means of ladders. The house seems not to be parallel with the street, but at an angle therewith, the size of which angle does not clearly appear.
On the occasion in question, the seed had been allowed to pile up under the conveyor to within a foot or two thereof. The two doors on the street side of the house were open, and seed were escaping through one, and probably through both, of them. The appellant, who was then five years old, and another child, were seen by an employee of the appellant about to enter the house through one of the doors on the street side thereof. This employee told them not to do so, that "Mr. Hammond don't allow you up there;" was then called away to attend to an urgent duty about the gin machinery, and thought the children had left the premises. Instead of doing this, they went to the other door, climbed up the ladder thereto, entered it, and commenced to play on the seed pile. The appellant went to the top of the seed pile, and proceeded to take seed out of the conveyor trough for the purpose of throwing them at his companion or on the seed pile, resulting in his hand being caught by the revolving shaft and injured. He stated that he saw the revolving shaft, knew what it was, and knew his hand would be injured if it was, and he was trying to keep it from being caught thereby. These two boys were seen in the seedhouse by the father of the appellant's companion several days before the appellant was injured, and were made by him to leave.
Children occasionally came to the gin with their parents, but it does not appear that they resorted to the seedhouse, or that any children had been seen by the appellee or his employees theretofore playing in the seedhouse.
The appellant, being a trespasser, is not entitled to recover, unless the case comes within the "attractive nuisance doctrine." This doctrine has been repudiated by a majority of the courts, and "needs very careful statement not to make an unjust and impracticable requirement." United Zinc Chemical Co. v. Britt, 258 U.S. 268, 42 S.Ct. 299, 66 L.Ed. 615, 36 A.L.R. 28. The tendency of the courts recognizing it is to limit, instead of enlarge, the scope thereof. Compare Sioux City P.R. Co. v. Stout, 17 Wall. 657, 21 L.Ed. 745, with United Zinc Chemical Co. v. Britt, supra, and N.Y.N.H. H.R. Co. v. David Fruchter, 260 U.S. 141, 43 S.Ct. 38, 67 L.Ed. 173. See, also, Salter v. Lbr. Co., 137 Miss. 229, 102 So. 268; McComb City v. Hayman, 124 Miss. 525, 87 So. 11; and Totty v. Lee County Gin Co. (Miss.), 110 So. 125. As enforced by this court, the doctrine may be stated as follows:
"One who maintains dangerous instrumentalities or appliances on his premises easily accessible to children and of a character likely to attract them in play, or permits dangerous conditions to remain thereon with the knowledge that children are in the habit of resorting thereto for amusement," — and who fails to exercise ordinary care to prevent children from playing therewith or resorting thereto, is liable to a child non sui juris who is injured thereby, and who did not know and appreciate the danger incurred by him in playing with the instrumentality or in the vicinity of the dangerous condition, or was too young to be charged with such knowledge. 20 R.C.L., section 71, at p. 80, and section 78, at p. 88; Mattson v. Minn., etc., R. Co., 95 Minn. 477, 104 N.W. 443; 70 L.R.A. 503, 111 Am. St. Rep. 483, 5 Ann. Cas. 498; 8 Thompson on Negligence (White's Sup.), section 1031; Mackey v. City of Vicksburg, 64 Miss. 777, 2 So. 178; City of Vicksburg v. McLain, 67 Miss. 4, 6 So. 774.
As hereinbefore stated, the evidence fails to disclose that children were accustomed to enter the seedhouse to the knowledge of the appellee or his employees. Consequently, that element of the "attractive nuisance doctrine" is here absent.
A landowner has the right to maintain a dangerous instrumentality on his premises that is attractive to children, provided he exercises ordinary care to prevent them from being injured by playing therewith. This duty he discharges when he exercises ordinary care to prevent them from ascertaining the presence of, or from obtaining access to, the instrumentality.
Assuming that the conveyor was an instrumentality likely to attract children in play, its presence in the seedhouse was sufficiently concealed, and it was ordinarily inaccessible to children. That, if anything, which attracted the appellant into the house and enabled him to ascertain the presence of and obtain access to the conveyor, was the pile of cotton seed, a place likely to attract children in play. Ordinarily, the presence of the seed in the house would not be detected by observing the house casually. But on the occasion in question seed were escaping through one, and probably two, of the doors, disclosing thereby their presence in the house. Assuming, therefore, for the sake of the argument, that the presence of the seed in the house was not sufficiently concealed, the question then arises, "Did the appellee exercise reasonable care to prevent the appellant from obtaining access to the seed pile?"
The house was constructed in the usual way. The appellee's employees, while on duty, were in the vicinity of the doors thereto, and were instructed not to let children enter the house. This instruction was here obeyed; for, as hereinbefore stated, the appellant entered the house after having been told by an employee of the appellee not to do so. Such a command would, ordinarily, be obeyed by a child of the appellant's age. To hold, as the appellant requests, that the appellee should have kept the doors of the house closed, thereby effectually preventing children from entering it, would be to impose upon the appellee the duty of insuring children from injury by the conveyor. Such is not the law. The appellee's only duty to the appellant was to exercise ordinary care to prevent him from obtaining access to, and being injured by, the conveyor. This duty he discharged. Compare Turner v. Cotton Oil Co., 96 Okla. 31, 219 P. 892, a case similar to the one at bar, and with which the decision here rendered is in accord.
We have left out of view the fact that the appellant knew and appreciated the danger he incurred by taking seed out of the conveyor with his hand, and express no opinion on the effect thereof, if any, on the appellee's liability for the appellant's injury.
Affirmed.