Bartlett v. Heersche

• Court: Kansas Supreme Court
• Writing for the Court: SCHROEDER
• Citation: Bartlett v. Heersche, 204 Kan. 392, 462 P.2d 763 (Kan. 1969)
• Decision Date: 23 December 1969
• Docket Number: No. 45503,45503
• Parties: Louis BARTLETT, Father and Heir at Law of Dean L. Bartlett, Deceased, and Vernon A. Elliott, Father and Heir at Law of Vernon A. Elliott, Jr., Deceased, Appellees, v. Marinas HEERSCHE, d/b/a Wichita Big River Sand Company, Appellant and Cross Appellee, and Davis Corporation, a Kansas Corporation, Appellant and Cross Appellant.

Page 763

462 P.2d 763

204 Kan. 392

Louis BARTLETT, Father and Heir at Law of Dean L. Bartlett Deceased, and Vernon A. Elliott, Father and Heir at Law of Vernon A. Elliott, Jr. Deceased, Appellees, v. Marinas HEERSCHE, d/b/a Wichita Big River Sand Company Appellant and Cross Appellee and Davis Corporation, a Kansas Corporation, Appellant and Cross Appellant.

No. 45503.

Supreme Court of Kansas.

Dec. 23, 1969.

Syllabus by the Court

1. In a wrongful death action brought by the parents of two deceased boys who drowned in a sand pit, the jury returned a verdict in favor of the plaintiffs against the operator and the owner of the premises upon which the sand pit was maintained, and upon appellate review it is held: (a) The evidence was sufficient to sustain a finding by the jury that the conditions created by the operation and maintenance of the sand pit constituted an attractive nuisance; (b) the operator of the premises and the owner thereof were jointly liable; (c) the appellants failed to establish that the trial court committed reversible error as to various trial errors asserted; and (d) the trial court erred in dismissing the cross petition of one co-defendant against the other based upon a contract of indemnity.

2. The attractive nuisance doctrine prevailing in this jurisdiction is based upon negligence. Where the owner or operator of premises maintains upon such premises a condition, instrumentality, machine, or other agency which is dangerous to children of tender years by reason of their inability to appreciate the peril therein, and which reasonably may be expected to attract children of tender years to the premises, the owner or operator of the premises is under a duty to exercise reasonable care to protect such children against the dangers of the attraction.

3. The attractive nuisance doctrine applies only to latent dangers. What the law considers to be a latent danger is not confined to things hidden from the eye alone. It extends to things hidden from the appreciation of the person injured, hidden from the combination of eyesight and knowledge-hidden knowledge of the properties of the things which the eyesight observes. It may thus be said a concealed danger extends to things hidden from appreciation of persons injured, as well as to things hidden from the eye.

4. Where the condition maintained on premises constitutes an attractive nuisance, simple negligence on the part of the operator and the owner in failing to maintain an adequate fence, as required by ordinance, is sufficient to impose liability upon both the operator of the premises and the owner of the premises, on facts more particularly stated in the opinion.

5. Those whose acts unite in producing the injury are jointly and severally liable to the injured party or parties.

6. Where the evidence presented in the trial of a negligence action is insufficient to establish contributory negligence on the part of the plaintiffs, it is proper for the trial court to withdraw the issue of contributory negligence from the jury by an instruction.

7. In the selection of a jury panel the trial judge is under an obligation to see that a fair and impartial jury is selected. In doing so counsel should not be permitted to convert jurors to their cause by voir dire examination. If reasonable restraints placed upon counsel by the trial court are abused to such an extent that opposing counsel is repeatedly required to object, the court in the exercise of its power of discretion should resort to the federal practice in a particular case and select the jury panel without the aid of counsel for either party.

8. Orders entered by the trial court at a pretrial conference have the full force of other orders of court and they control the subsequent course of the action, unless modified at the trial to prevent manifest injustice. (K.S.A. 60-216.) This proviso reposes in the trial court large discretionary powers.

9. In a wrongful death action where the verdict results in maximum recovery authorized by K.S.A. 60-1903 and 60-1904 for the drowning of two small boys, the record is examined and it is held the verdict was not excessive.

10. Where the plaintiffs in a tort action recover a judgment against two defendants as joint tortfeasors, one of the defendants may cross-claim against the other pursuant to K.S.A. 60-213(g), where the liability as between themselves is controlled by a contract of indemnity.

Robert J. O'Connor, Wichita, argued the cause, and A. W. Hershberger, Richard Jones, H. E. Jones, Jerome E. Jones, Robert J. Roth, William R. Smith, Greer gsell, Stephen J. Jones, Michael Jones and George D. McCarthy, Wichita, were with him on the brief for appellant and cross appellee, Marinas Heersche, d/b/a Wichita Big River Sand Company.

Fred A. Beaty, Wichita, argued the cause, and E. Lael Alkire, Richard B. Clausing, Robert A. Coldsnow, Aubrey J. Bradley, Jr., Thomas A. Bush, Ronald J. Wilkinson, Gillard Cohen, Harry L. Eddy and Martha R. Hodges, Wichita, were with him on the brief for appellant and cross appellant, Davis Corporation.

John C. Frank, Wichita, argued the cause, and Patrick Kelly and Lloyd M. Kagey, Wichita, were with him on the brief for appellees.

SCHROEDER, Justice.

This is a wrongful death action brought by the parents of two young boys who drowned in a sand pit within the city limits of Wichita, Kansas. The case was tried to a jury on the theory of attractive nuisance and a verdict returned for the plaintiffs in the total sum of $52,024.02. From the judgment thereon appeal has been duly perfected by the defendants assigning various trial errors.

Among the trial errors asserted, the appellants challenge the sufficiency of the evidence to support a verdict on the theory of attractive nuisance.

The evidence discloses that Dean L. Bartlett, four years old, and Vernon A. (Buddy) Elliott, Jr., five years old, were playmates and resided near each other in the area of Southwest Wichita. The Bartletts were the parents of four other children under ten years of age, and the Elliotts had one other child, a three year old daughter. The Bartletts moved into the neighborhood in August, 1964, and the Elliotts in July of the same year. Both families were buying their homes which were situated in the 4500 block on South Charles Street.

In the spring of 1966 the Elliott boy was a kindergartner in school, but the Bartlett boy was too young for school. The two boys were together whenever possible, and their mothers cooperated in the supervision of the children. Mrs. Elliott ordinarily cared for Mrs. Bartlett's children when the latter was employed. Mrs. Bartlett on the day in question was working part time in the afternoon, but Mrs. Elliott was not caring for the Bartlett children because her daughter had 'pink-eye,' which was contagious. However, a Mrs. Morrow had been hired to care for the Bartlett boy.

On the afternoon of March 15, 1966, the Elliott boy came home from school at approximately 4:00 o'clock. He asked his mother if he could play with Dean and another five year old boy named Randy Schauner. Permission was given and Mrs. Elliott returned to care for her daughter. At that time the boys were in the front yard. Ten or fifteen minutes later Mrs. Elliott, not hearing the boys, went out to look for them. Soon Randy's grandmother came to the Elliott home and told Mrs. Elliott the boys were at the sand pit, and Dean had his feet wet. Randy had run back to the pit and his grandmother wanted Mrs. Elliott to go to the pit and get them.

The sand pit where the boys had gone was located on a forty-acre tract and occupied approximately fifteen acres, with an attained depth of nearly forty feet of water in places. The property upon which the sand pit was located was owned by the Davis Corporation (defendant-appellant-cross appellant) and operated by Marinas Heersche, d/b/a Wichita Big River Sand Company (defendant-appellant-cross appellee.) The south boundary of the tract upon which the sand pit was situated was 44th Street. On the south edge of the tract was an old three-strand barbed wire fence, partially down and in poor condition.

South Charles Street, upon which the homes of the plaintiffs are located, deadends into 44th Street across from the tract in question. The plaintiffs' houses are less than half a city block south of 44th Street.

A second fence, approximately one hundred yards north of and parallel to the barbed wire fence, made of V-shaped mesh wire was 'mashed down' and could be stepped over at a point north of the end of Charles Street. One block east of Charles Street the V-shaped mesh wire fence had a cut leaving an opening twelve feet wide. The south bank of the sand pit was approximately one hundred yards north of the V-shaped mesh wire fence.

The surface of the water in the pit was twelve to eighteen inches lower than the bank, and a shelf covered with three or four inches of water extended for approximately four feet from the bank and then sloped steeply to a depth of about ten feet within ten feet of the shore. The sand pit contained pumping machinery on the north bank which could be seen from the plaintiffs' houses. At least one raft, made of steel drums and a wooden platform used to support hoses or pipes employed in the sand pumping operation, floated free in the water at or near the south bank of the pit unattached to the pumping machinery or pumping operations at the pit.

Although the water was not visible from the homes of the plaintiffs, the presence of the pit was commonly known to all of the residents of the neighborhood.

A petition had been circulated in the neighborhood approximately a year prior to the incident to require the owners and operators of the pit to repair the fences, and children were known to have frequented the area.

When Mrs. Elliott went to the sand pit on the afternoon in question she followed a path the boys had used in going to the sand pit. She stumbled over the V-shaped...