Consolidated Lead & Zinc Co. v. Corcoran

Decision Date17 February 1930
Docket NumberNo. 8.,8.
PartiesCONSOLIDATED LEAD & ZINC CO. v. CORCORAN.
CourtU.S. Court of Appeals — Tenth Circuit

Stewart Lynch, of Tulsa, Okl. (A. C. Wallace, of Miami, Okl., and Herbert D. Mason, of Tulsa, Okl., on the brief), for appellant.

Frank Nesbitt, of Miami, Okl., for appellee.

Before LEWIS, COTTERAL, and PHILLIPS, Circuit Judges.

COTTERAL, Circuit Judge.

The Consolidated Lead & Zinc Company appeals from an adverse judgment rendered upon the verdict of a jury in a suit of Karl Corcoran, a minor, brought by a next friend, to recover damages for personal injuries sustained by him on the premises of the company. The errors assigned are mainly (1) overruling a demurrer to the petition for failure to allege a cause of action, (2) refusal to direct a verdict for the company, and (3) instructions given and refused. We find it necessary to reverse the judgment, because of an instruction relative to damages, but as the other questions now presented will likely arise at another trial, we proceed also to determine them.

A preliminary averment of the petition is that the company owned at Picher, Okl., a city of 15,000 inhabitants, a mill, transformer house, and other equipment, known as the "Piokee Mine," located one block north of the high school building, passed by a public road long traveled by many inhabitants and used daily by school children. The transformer house, it is alleged, 15 by 20 feet in dimensions, located near and in plain view from the road, was maintained by the company with electrical equipment for the operation of the mine, and for several months before the accident, without fence or guard, with the front and a small side door open, the equipment consisting of rheostats, transformers, and switch connections, attractive and easily accessible to children, exciting their curiosity and interest, without notice it carried a dangerous charge of electricity.

It is alleged that for several months before the accident it had been the custom of the plaintiff and other boys who attended the school and lived in the neighborhood to play around the transformer house and mine, haul refuse from around the house, and to use it and the premises around the mine as a playground, as the company well knew, or could easily have known, and further, on the day of accident there was no day watchman at the mine, and the company had recently cut the wiring in the transformer house, leaving one cord loose and unwrapped on the floor, but connected with the electrical power.

It is then alleged that on February 22, 1927, while these conditions were known to and permitted by the company, the plaintiff and another boy were playing in the transformer house, the latter pushed a switch, connecting the power with the wire on the floor, and shortly they engaged in a friendly scuffle in which plaintiff fell to the floor with his hands on the exposed wire, whereby the electric current burned his arms, necessitating amputation of both, with the attendant pain and suffering, permanently depriving him of earning capacity and rendering him an object of pity; that the injury was due to the negligence of the company in failing to fence, guard, protect, or lock the transformer house, or close it for several months, and to have a watchman there to notify children of the danger, well knowing it contained machinery interesting and alluring to children and highly dangerous, and they had customarily played around the house and equipment; and that the injury would not have occurred but for defendant's negligence.

An objection to the petition is it shows the plaintiff was a trespasser on the company's property, whereby the company could be liable only for a willful or wanton injury, not complained of in the petition. Many cases are cited to so fix plaintiff's status, particularly United Zinc Company v. Britt, 258 U. S. 268, 42 S. Ct. 299, 300, 66 L. Ed. 615, 36 A. L. R. 28, where the allurement was a poisonous pool of water, without evidence that it attracted the children to the premises. That case distinguished Railroad Company v. Stout, 17 Wall. 657, 21 L. Ed. 745, where an unlocked turntable in an open space and near two roads was the attraction, and the company had reason to anticipate children would resort to it, and Union Pacific Railway v. McDonald, 152 U. S. 262, 14 S. Ct. 619, 38 L. Ed. 434, where a frightened boy ran and fell into burning slack, on an open lot near a path. Both of those cases are more nearly applicable here. The Britt Case was essentially different in the facts, which were held not to impose the duty of care. The court said: "There can be no general duty on the part of a landowner to keep his land safe for children, or even free from hidden dangers," but was careful to add, "if he has not directly or by implication invited or licensed them to come there." The case is obviously not in point. The "attractive nuisance" doctrine is also said to be inapplicable, and cases are cited as a demonstration. Of these, Hardy v. Missouri Pacific (C. C. A.) 266 F. 860, 36 A. L. R. 1, is typical. It was held there must be a reasonable expectation of the presence of children at the time and place of danger to impose the duty of protection, and there was no sufficient evidence on which to found it.

But it is alleged in this case that habitual use as a playground had been made of the premises and transformer house, as the company knew or might easily have known, and in that situation the plaintiff was a licensee, and being there as such, with the acquiescence of the company, it owed him the duty of protection against danger in the transformer house known to the company, to which he might be attracted and to which it might reasonably anticipate he would resort and be injured. Escanaba Mfg. Co. v. O'Donnell (C. C. A.) 212 F. 648; The Ansonia v. Sullivan (C. C. A.) 239 F. 296; Atlanta & W. P. R. Co. v. Green (C. C. A.) 246 F. 676; Felton v. Aubrey (C. C. A.) 74 F. 350; Clark v. Longview Public Service Co., 143 Wash. 319, 255 P. 380; Sweeten v. Pacific P. & L. Co., 88 Wash. 679, 153 P. 1054; Smith v. Windsor Reservoir & Canal Co., 78 Colo. 169, 240 P. 332; Cahill v. Stone & Co., 153 Cal. 571, 96 P. 84, 19 L. R. A. (N. S.) 1094; 45 C. J. 802, 803, 806, 807.

The plaintiff's case as made by the petition rests on his position as a licensee at the grounds and transformer house, and we are of the opinion a cause of action was sufficiently alleged. The...

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    • United States State Supreme Court of Mississippi
    • March 27, 1933
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