Brinkley Car Works & Mfg. Co. v. Cooper

• Decision Date: 12 April 1902
• Citation: 67 S.W. 752
• Parties: BRINKLEY CAR WORKS & MFG. CO. v. COOPER.
• Court: Arkansas Supreme Court

67 S.W. 752

BRINKLEY CAR WORKS & MFG. CO. v. COOPER.

Supreme Court of Arkansas.

April 12, 1902.

Appeal from circuit court, Monroe county; George M. Chapline, Judge.

Action by Fred Cooper against the Brinkley Car Works & Manufacturing Company. Judgment for plaintiff. Defendant appeals. Reversed.

The Brinkley Car Works & Manufacturing Company, a corporation organized under the laws of this state, has its plant located at Brinkley, Ark. It was the custom of the company to let the water out of its boiler once every two weeks to cleanse the boiler. When the water was thus let out, it flowed into a depression on the premises of the company, and formed a shallow pool of hot water, but in about an hour it sank into the earth. The water was usually let out on Sunday so that the boiler could be cleaned out on Monday following. On a Sunday, shortly after the boiler was emptied, Fred Cooper, a boy six years and two months old, who was playing on the premises of the company, walked into the pool of hot water, and was severely scalded on his feet, legs, and hands. He brought this action against the company to recover damages for the injury. In explanation of the accident, he testified that he and another boy were on the side of the mill where the water came out of the box, and went into the pool. "We were," he said, "throwing bark and chips into the water in the mouth of the pit, and watching the steam rise. The pool was covered with bark, except when the force of the water had pushed it back at the mouth of the pool. The rest of the pool was covered up with trash and bark, so that the water could not be seen, and when I stepped in I thought it was ground, and did not see the water."

The court in its instruction No. 1 instructed the jury as follows: "If the jury believe from the evidence that the agent or agents of the defendant had knowledge, or ought reasonably to have known, that the plaintiff, and boys about the age of plaintiff, were in the habit of playing at the pool of water where the plaintiff was injured, and on and about its premises around and near said pool, and thereafter made no effort to protect said pool from exposure as would prevent the plaintiff and other children of his age from going into it and receiving said injury, the defendant would be guilty of negligence, and you will find for the plaintiff." Defendant duly objected, and saved exceptions to the giving of this instruction. The plaintiff recovered judgment for $1,800, from which judgment the company appealed. This is the second time the case has been before this court, and a fuller statement of the facts can be found reported with former opinion, in 60 Ark. 545, 31 S. W. 154, 46 Am. St. Rep. 216.

N. W. Norton and C. F. Greenlee, for appellant. M. J. Manning, J. P. Lee, and Grant Green, Jr., for appellee.

RIDDICK, J. (after stating the facts).

This is an action brought for a minor by his next friend to recover damages for injuries received by him from a pool of hot water on the premises of the defendant company. The case has been twice tried, and is now before this court for the second time. On the first trial the plaintiff rested his right to recover on the fact that the company permitted a pool of hot water on its premises to be covered over and concealed by bark and trash, so that plaintiff, a boy six years of age, while playing on the premises, and not knowing that there was a pool of hot water there, walked into it, and was burned. On the appeal from the judgment rendered on that trial the case was reversed by this court, for the reason that the instructions of the trial judge did not submit to the jury the question whether, under the circumstances in proof, the company ought reasonably "to have anticipated that children of the age of the plaintiff would probably go upon the premises and receive such injury as the plaintiff did receive by reason of the situation and condition of the pool of water at the time of the injury." The court said that "the owner of land is not required to provide against remote and improbable injuries to children trespassing thereon; but he is liable for injuries to children upon his private grounds when it is known to him that they are accustomed to go upon it, and that from the peculiar nature and exposed and open condition of something thereon which is attractive to children he ought reasonably to anticipate such an injury to a child as that which occurred." Now, it seems from some of the instructions given on the second trial that the circuit judge understood from this language that the defendant company was liable in ...