Alligator Co. v. Dutton, 11417.

• Decision Date: 23 February 1940
• Docket Number: No. 11417.,11417.
• Parties: ALLIGATOR CO. v. DUTTON.
• Court: U.S. Court of Appeals — Eighth Circuit

109 F.2d 900 (1940)

ALLIGATOR CO. v. DUTTON.

No. 11417.

Circuit Court of Appeals, Eighth Circuit.

February 23, 1940.

Claude O. Pearcy, of St. Louis, Mo. (Bishop, Claiborne & Heneghan and George E. Heneghan, all of St. Louis, Mo., on the brief), for appellant.

Lucien B. Barton, of Louisville, Ky. (Joseph J. Goodman, of St. Louis, Mo., on the brief), for appellee.

Before GARDNER and WOODROUGH, Circuit Judges, and MOORE, District Judge.

WOODROUGH, Circuit Judge.

The Alligator Company appeals from a judgment rendered against it for damages for personal injuries suffered by Jene Dutton, a nine year old boy who was burned by a highly inflammable waste product which the company had left accessible to him and other playing children. It was alleged that negligence of the company was the proximate cause of the injuries and the recovery was upon that ground. Diversity of citizenship and jurisdictional amount involved were shown and the federal jurisdiction vested upon removal of the cause from the state court.

There was substantial evidence to show that: Jene Dutton was burned while playing in a cave located on a vacant lot behind the Alligator Company's plant at 4171 Bingham Avenue, St. Louis, Missouri. Sometime before the day of the accident, November 23, 1936, the cave roof had collapsed, leaving an open 8 x 8 foot hole about 5½ feet deep. Jene Dutton, age 9, Jack Dutton, his brother, age 11, and Wilbur Womack, age 12, were children of the neighborhood who played in and about the cave. At the time of the accident Jene Dutton was warming himself before a fire built in one corner of the cave where some potatoes were being cooked. The lot was unimproved, a weed-grown and rubbish scattered area in the center of the St. Louis 4100 block between Bingham and Meramec, off Gravois. Industrial plants and property shut the lot off from view from Bingham Street, but on the Meramec side passersby could see into the lot past the small houses built there, such as the Dutton's six room structure, and also across unoccupied residence lots. Children could be seen playing on the lot daily, sometimes as few as three, sometimes as many as twenty five used the lot as a playground, for football, taggers and release, for hunting snakes, and on cold days for building fires. The owner of the lot, the Missouri Portland Cement Company, made no use of the lot, posted no "Keep Off" signs and did not instruct the children to keep away or the police to "run them off". The children had no other local playground except the city streets.

The size of the vacant lot was variously estimated to be 120 feet by 120 feet, up to 250 feet by 200. A coal yard and a fenced orchard formed boundaries. The cave was situated off the center of the lot about three-sevenths of the straight line distance from the rear of one of the Meramec houses, the Sexton's, on the north, to the rear line of the Alligator Company's property on the south. At the time of the accident the company maintained an incinerator having a chimney sixty feet high located some twenty feet to the rear of its plant and its custom was to set down two or three five-gallon buckets of the waste product of its manufacture some four to eight feet behind the chimney to use for building fires. The company's property line nearest that point was not marked or distinguishable.

The waste material was the residue of the company's raincoat cloth processing; after the cloths were treated with the company's secret fluid in tanks, the cloths were removed and the fluid drained out for reuse. Before another batch could be processed in the tanks, it was necessary to rinse the tanks with naphtha and to rub the tank walls with naphtha-soaked rags. The rags and cleaning drainage were then put in five-gallon buckets which were taken to the boiler room and to the incinerator. At the incinerator the buckets were left covered and held down by brick or tile set on top of the cover. The company employees who used the material to make fires in the incinerator could be seen at their task by the children on the lot. These men and other company employees could and did see the children playing on the lot and could have observed the fires which the children frequently made. But no attempt was made to protect the buckets or to warn the children about the waste material which looked like an ordinary heavy dark oil. The oil was in fact highly combustible, a semi-explosive. It had a flash point of 95 degrees Fahrenheit, a percussion rate of 1,300, and burned steadily at 113 degrees. Although only 8 per cent of the fluid was the paraffin naphthabenzene, analysis showed that the explosive contents of the material were strong enough, should a tomato can of the substance come into contact with the fire, to throw the can ten to fifteen feet into the air. The material was left in the buckets unwatched on the vacant lot or on the contiguous property of the Company, where it was readily available.

November 26, 1936, Wilbur Womack, home from school and out playing on the lot with the Dutton boys, went over to the buckets and filled a tomato can with the waste material. Wilbur took the can over to where Jene Dutton stood in the cave, warming himself by the fire. Wilbur told Jene to throw the contents on the fire, "it would make it burn quicker". Wilbur thought the contents were an ordinary oil, and so did Jene. Jene was putting some potatoes in the fire when Wilbur brought the oil up, so Jene said he would not put the oil on then, but would in a minute. Wilbur set the can down on the ground above the cave in a level spot some four or five feet from the edge. Wilbur turned again to his play with Jack Dutton and thereafter the can was blown by the wind or otherwise rolled or thrown into the fire. The can shot up in the air with a whishing noise and a flash was seen by a coal yard employee and also by Mrs. Sexton, the nearest neighbor. Jene's clothes caught fire and he rolled on the ground, while his brother tried to extinguish the flames with his cap. Jene ran screaming to a near neighbor's house, the Connor's, where Mrs. Connor put baking soda on his burns. Wilbur went to get Jene's father, who with Mr. Connor took Jene to the hospital. Jene's burns were found to be serious, of both first and second degree. Narcotics were administered to ease his pain; he was given blood transfusions and skin grafting was performed. He was not discharged from the hospital for several weeks.

Plaintiff's theory was that the company was negligent in leaving the dangerous waste material where the children could get it; the theory assumed that the can of oil was blown or tipped by the wind into the fire. Many witnesses, including the policemen who investigated the case, testified for plaintiff, describing the cave and the weather conditions, including the degrees of wind and cold, and the vacant lot and surrounding area. An expert gave an analysis of the waste fire-building fluid. Each of the three boys gave his account of the accident. Mrs. Sexton and an employee of the coal yard told about seeing the can shoot up in flame. Mrs. Connor and Mr. Dutton described the first aid efforts, and hospital attendants, the nurse and doctor, described medical treatment. The hospital admission cards described the accident as occurring when "Nine year old boy was playing in a cave with fire and his clothes caught fire." In the report that he "was exploring a cave this afternoon with some comrades when a candle he was carrying ignited some oil carried by another boy". The reports noted he was in acute pain and under influence of MS. The doctor testified that the boy had not fully recovered at the time of the trial.

The company demurred to plaintiff's evidence, and when this was overruled introduced evidence on its behalf. The United States Weather Bureau expert testified that at the hour of the accident the wind was blowing at an average of 18 miles per hour. Company employees testified as to how the fluid in the buckets was obtained, but no expert was called to refute the analysis made by the chemist called by the plaintiff. Company employees testified that the buckets were kept on the company's property, but one of them testified that the buckets were kept eight feet beyond the incinerator toward the vacant lot, and another testified that a fence which the company put up on its rear line after the accident was only four feet beyond the incinerator. At the close of all the evidence the company made a request for special findings and for instructions which were denied. It made a motion for a directed verdict which the court withheld for consideration pending the jury verdict. The case was submitted to the jury on two special questions:

1. Under all the facts and circumstances in evidence, was the defendant negligent in placing the buckets and their contents where the evidence shows they were kept?

2. If the above question be answered in the affirmative: Do you believe that a reasonably prudent person should, under all the circumstances shown by the evidence, have foreseen that an accident such as this might reasonably be expected to occur?

The jury returned a verdict for Jene Dutton in the sum of $6,000 and the court subsequently overruled the company's motion for directed verdict. In an opinion rendered upon the denial of motion for directed verdict, the trial court stated that the plaintiff had no desire to rely upon the attractive nuisance or turntable cases as usually understood, as an affirmative cause of action and ground for judgment, but that the doctrine was relied upon only to rebut the defense of trespassing: "The question of proximate cause, like that of due care, should not have been submitted to the jury had it not been that the `attractive nuisance' doctrine removed the two boys from the classification of trespassers when they took the naphtha, and took from defendant the protection of the rule relieving it of any responsibility to anticipate...