Brennan v. Kaw Const. Co.
| Decision Date | 12 June 1954 |
| Docket Number | No. 39375,39375 |
| Citation | 176 Kan. 465,271 P.2d 253 |
| Parties | BRENNAN v. KAW CONST. CO., Inc., et al. |
| Court | Kansas Supreme Court |
Syllabus by the Court
In an action by a two-year-old boy, through his father as next of kin, for damages alleged to have been sustained when plaintiff fell off the roof of a house under construction after having climbed there by means of an elevator that had been used to convey shingles to the roof and had been left in place on Saturday and Sunday with one end on the ground and the other end on the roof, the record is examined and Held the plaintiff's evidence was not sufficient to warrant the submission of the issues to the jury on the 'attractive nuisance' theory.
James R. Hoover, Prairie Village, and Howard E. Payne, Olathe, on the briefs, for appellant.
William H. Sanders, Kansas City, Mo., argued the cause and Robert B. Caldwell, Blatchford Downing, Stanley Garrity and Robert S. Eastin, Kansas City, Mo., and John W. Breyfogle, Jr., Olathe, on the briefs, for appellees Hale and Werle.
Robert P. Anderson, Overland Park, for appellee Kaw Const. Co.
This was an action by a two-year-old child by his father to recover damages alleged to have been sustained when the defendants maintained upon premises under their control a conveyer alleged to be dangerous to children of tender years by reason of their inability to appreciate the peril they incurred by playing upon it, commonly known as an attractive nuisance case. Judgment was for the defendants, sustaining their demurrer to the plaintiff's petition. He has appealed.
After the formal allegations, the petition alleged that the Kaw Construction Company was in the business of contracting for and construction of homes in Johnson county; that the defendants Hale and Werle were partners with their residence in Johnson county; that about the 28th of September, 1952, defendants were in exclusive possession and control of real property located at 1213 Fredrickson Drive in Olathe; that in connection with the construction of a house upon that property the defendants used and maintained an escalator type conveyer for transporting materials from the ground to the roof of the house; that it was left in place for use on Sunday, September 28, 1952, and was not enclosed, retracted to ground level, or guarded in any way, and the mechanism thereof was in place for operation at all times, attractive to young children as a plaything and very dangerous for them to use, and to walk up to the roof of the house under construction, and such danger could have been avoided by retracting the conveyer to ground level, and all these facts were well known to defendants at all times; that plaintiff resided on the above date next door to the house where the conveyer was located and his son, the plaintiff, who was two years old on that day, and other small children, had been in the habit of watching and passing along the street by this house; that the conveyer was at all times when the workmen left their work retracted to ground level when not in use, but on the above date and for a day prior thereto defendants and their servants negligently left it in place for use, unguarded, and while in this condition plaintiff wandered into the property to engage in play with another child, walked up the conveyer onto the roof of the house and from there fell to the ground; that at such time James J. Brennan III was of too tender an age to appreciate the danger which he incurred by playing upon the conveyer and his resulting injuries were caused by the defendants, their agents, servants and employees carelessly and negligently leaving the conveyer in place, abandoned and unguarded; that as a consequence thereof plaintiff's body was bruised and he was damaged.
The defendant Kaw Construction Company admitted the formal allegations and denied each and every other allegation. The answer further stated that all of the equipment described was exclusively owned, maintained, operated and controlled by the defendant partnership, Hale and Werle, who had an independent contract for the application of roofing upon the house in question.
The prayer was that the plaintiff's petition be denied.
The defendant partnership admitted the formal allegations and filed a general denial. They alleged further that they were not in exclusive possession of the premises; that other contractors, firms and individuals were in and about the premises and used the equipment thereon as occasion arose and that if the conveyer was left extended and unguarded, which they did not admit, some other person had left it so.
At the close of plaintiff's evidence the defendants both demurred to it. These demurrers were sustained--hence this appeal.
The specified grounds of defendants Hale and Werle were that there was no showing of any negligence on the part of the partnership, no showing of any acts of the partnership that could have been the proximate cause of plaintiff's injuries and the elevator in question was no attractive nuisance.
We shall state at the outset the rule followed by this court when we are ruling upon a demurrer to the evidence. We do not weigh evidence in such a case. We do not weigh or compare contradictory testimony but we accept all evidence as true and give to the plaintiff the benefit of all reasonable inferences that may be properly drawn therefrom and we consider only such portions of the evidence as are favorable to the plaintiff. See Blankenship v. Fraker, 173 Kan. 438, 249 P.2d 683.
Chronologically stated, the evidence established that on Sunday, September 28, 1952, and for a time prior thereto the Kaw Construction Company, contractor, was constructing a house on property located at 1213 Fredrickson Drive, Olathe, Kansas. Hale and Werle, subcontractors for roofing of said house, were the parties in exclusive possession and control of the premises and condition, instrumentality and machinery thereon.
On September 28, 1952, a 32 foot Sam Mulke Elevator, owned and controlled by Hale and Werle, was in place, providing a gradual incline upon which to walk or crawl from the ground to the roof of the house, which elevator was openly exposed, unguarded and upon which children of tender years were playing. The elevator could have been easily retracted to the ground, but was...
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...v. Kansas City, supra) while attractive to boys were held not to come within the attractive nuisance doctrine. In Brennan v. Kaw Construction Co., 176 Kan. 465, 271 P.2d 253, the pleadings and the plaintiff's evidence disclosed that the defendant permitted an escalator-type elevator to rema......
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