City of Shawnee v. Cheek

Decision Date23 December 1913
CourtOklahoma Supreme Court

Syllabus by the Court.

A landowner owes a trespasser a duty, in respect to safety from dangerous artificial condition of premises, to not injure him intentionally or wantonly.

A mere omission, although superficially characterized by mere thoughtlessness or heedlessness, but, in its deeper explanation, involving a reckless disregard for the safety of merely technical and reasonably anticipated trespassers, such as children of tender years, especially if unconscious trespassers, in respect to obviously and seriously dangerous artificial condition of premises, may amount to wantonness in a landowner; but the attractiveness and accessibility of the place or thing involving such danger to and the probability of such trespassers, the gravity of the danger in such condition, the length of time such condition has existed, the smallness of cost and of deprivation of beneficial use involved in eliminating same, and the reasonableness of the inference that the landowner, as a person of ordinary sensibilities and prudence, knew or should have known of, and under all the facts and circumstances in the case should have eliminated such danger, are proper considerations in determining whether there was such reckless disregard for the safety of such trespassers.

A child under 7 years of age, or, in the absence of evidence of capacity, between 7 and 14 years of age, is presumed to be incapable of guilt of more than technical trespass, as affecting question of duty of owner in respect to dangerous condition of premises, and the character of the trespass may be a circumstance to be considered by the jury in ascertaining whether there is contributory negligence.

Section 4313, St. 1893 (section 5281, Rev. Laws 1910), does not operate as a continuance of any right of action which the injured person would have had but for his death, but confers upon the beneficiary thereof a property right in the pecuniary value to him of the life of his decedent, and gives him a new or independent cause of action for the pecuniary loss he has sustained by reason of such death.

A cause of action arising under section 4313, St. 1893 (section 5281, Rev. Laws 1910), has the quality of survivability, is not extinguished by the death of the beneficiary therein, and may be revived and prosecuted in the name of his administratrix.

A petition which does not allege facts from which a reckless disregard for the safety of reasonably anticipated technical if not unconscious, trespassers, amounting to wantonness appears as a legal conclusion, nor the ultimate fact of reckless disregard for the safety of such trespassers amounting to wantonness, is not sufficient, as against a demurrer, to warrant a recovery of damages for death resulting to such trespasser from dangerous artificial condition of defendant's premises.

Commissioners' Opinion, Division No. 1. Error from District Court Pottowatomie County; Chas. B. Wilson, Jr., Judge.

Action by Fannie W. Cheek, administratrix, against the City of Shawnee. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

E. E Hood, City Atty., W. M. Engart, Asst. City Atty., and W. T. Williams, all of Shawnee, for plaintiff in error.

Blakeney & Maxey, of Muskogee, for defendant in error.


The plaintiff in error will be designated as defendant, and defendant in error as plaintiff, in accord with their respective titles in the trial court.

About May 24, 1908, defendant owned and possessed, within its corporate limits, a brick pumphouse, with three rooms, in one of which there was a pump pit about 11 feet deep, and covering practically the entire floor space of the room, except a walk way about 10 feet wide on one side. This pumphouse was on an unbuilt-up and little used portion of a public street within the corporate limits of defendant, and was in a valley about 75 or 100 yards, according to one witness, or 350 or 440 yards, according to other witnesses, south from the south end of the built-up and more traveled portion of this street, which built-up and more traveled portion of the street extends downward, and ends on the south side of a hill north of the valley. About 75 or 80 yards south of the pumphouse was the channel of the North Canadian river, with which the pumphouse pit was connected by a pipe. About 200 yards from the pumphouse was a race track, and within 60 or 70 feet of the pumphouse were the stables connected, in use or purpose, with the race track. The defendant had used the pumphouse in connection with its system of waterworks; but 3 or 4 years before the date mentioned had taken its pump and pumping equipment away from the pit and building, and had abandoned use of the same because of the flooding of the pump pit through its said pipe connection on the occasion of a rise in the river. The pipe from the river entered the pump pit about 12 or 18 inches above its bottom, which it appears was above the ordinary level of the water in the river; but plaintiff, in her testimony, mentioned three occasions on which the pump pit had been flooded by rises from the river. After defendant abandoned the pumphouse, it was, with the knowledge and consent of a member of defendant's council, occasionally used by parties having animals in the race track stables for storage of hay; but on May 24, 1908, when as a result of a rise in the river commencing about 2 days before, there was about 9 feet of water in the pump pit, there was no hay in the pumphouse except a remnant scattered about over the floor and on the surface of the water, which hay on the water had been raised, by the rising of the water, from the bottom of the pump pit. The defendant had made no other use of the premises for 3 or 4 years. The glass, if not the sash, had disappeared from the windows, the doors had fallen into a dilapidated condition, both doors and windows were open, and such had been the condition during the greater portion of the time of defendant's abandonment of its use of the pumphouse. James Cheek, the original plaintiff, and Fannie W. Cheek, in whose name, as administratrix, the action was revived, on May 24, 1908, resided with their family, outside of defendant's corporate limits, about 150 yards from the pumphouse, and their children, as well as other children in that vicinity, played about the pumphouse during the time of its abandonment. The plaintiff's children also hunted eggs in the hay in the pumphouse; but plaintiff forbade her children playing about the same. The evidence does not show that defendant had actual knowledge of such use of its premises by children, nor actual knowledge of the coat of hay on the surface of the water, nor of the depth or fact of water in the pump pit at the time of the accident. On May 24, 1908, the original plaintiff, with Thompkins Cheek, the 9 year old son of the two successive plaintiffs, and an older son, had occasion to be, and were, near the pumphouse; but the father and older boy went a short distance away in a boat, leaving Thompkins Cheek to watch some hogs near the pumphouse, and, when the father and older boy, soon after, returned, Thompkins Cheek could not be found. In the afternoon of the same day the body of Thompkins Cheek was found drowned on the bottom of the pump pit. At that time the surface of the water in the pit was practically covered with hay that was dry on top, although at places the hay was very thin in its covering, and, by close observation, the water could not only be seen through the hay at places, but there were open spaces from the size of a man's hand to a foot or more square where the same could be seen. It appears inferentially that Thompkins Cheek, for some unknown purpose, although probably to gratify an instinctive curiosity or desire to re-explore the silent chambers of the deserted building, and possibly lounge upon the hay he thought to find therein, or to search for hens' nests, or to gratify some other boyish impulse, had entered the pumphouse through an open door, had stepped upon the dry hay, apparently, to his view, covering the surface of the water in the pit, without knowledge of there being water in the same, and, the surface of the water being about 2 feet below the top of the pit, had been unable to extricate himself. The evidence shows he had been an industrious boy, and helped his parents, not only by work in the field, but by doing chores about the house, and his father, who died about 10 months later, was 61 years of age when he was drowned.

This action was begun by petition filed August 6, 1908; but no trial was had until November 11, 1911, when a verdict for $2,000 was returned for plaintiff.

The case presents the vexed question of the liability of a landowner for personal injuries and death resulting from a child trespasser's contact with a dangerous condition of the premises.

In 1841 Lord Denman, C.J., in Lynch v. Naudain, 1 Q. B. 29, sustained a verdict for an injury upon a plaintiff, under 7 years of age, who, with several other children, were playing with defendant's horse and cart in a public street, where same had been left unattended for half an hour, when another boy, by leading, caused the horse to move, and plaintiff, falling from the shaft, was run over by a wheel of the cart, and suffered a fractured leg.

That appears to be the first case in which an owner of property without actual intent to injure, or actually setting in motion a force, or setting a trap, from which injury resulted, had been held liable for personal injuries caused by trespasser's contact with a dangerous condition of his property, not aside from and so near a public highway as to be dangerous to travelers getting off the same,...

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