Emery v. Thompson

• Decision Date: 12 March 1941
• Docket Number: 36662
• Citation: 148 S.W.2d 479,347 Mo. 494
• Parties: William R. Emery and Madge Emery, his wife, surviving parents of Dwayne Emery, a Minor, Appellants, v. Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, a Corporation
• Court: Missouri Supreme Court

148 S.W.2d 479

347 Mo. 494

William R. Emery and Madge Emery, his wife, surviving parents of Dwayne Emery, a Minor, Appellants, v. Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, a Corporation

No. 36662

Supreme Court of Missouri

March 12, 1941

Appeal from Stoddard Circuit Court; Hon. James V. Billings Judge.

Affirmed.

C A. Powell and Phillips & Phillips for appellants.

(1) Plaintiffs' petition state a cause of action under the "attractive nuisance" doctrine. It alleged that defendant maintained on its unfenced and unguarded right-of-way along, adjoining and against a publicly traveled street, for a period of six months before plaintiffs' child was killed thereby, a number of dangerous piles of tramroad cross-ties, piled or laid in rows or tiers to a height of 20 feet or more, and not cribbed, braced or safe-guarded in any manner at the ends of the rows or tiers to prevent them from rolling down upon and injuring children playing upon or about them; that these dangerous piles of ties were attractive to children who had habitually played on them during the time, and that defendant knew of this fact in time thereafter to have cribbed, braced or otherwise safe-guarded said tie piles and thus prevented the injury and death of plaintiffs' son, but that the defendant negligently failed to do so and that defendant's negligence resulted in the injury and death of plaintiffs' child. If the facts so pleaded in plaintiffs' petition are shown at the trial, they would be entitled to recover under the doctrine announced in the following analogous cases: Hull v. Gillioz, 130 S.W.2d 623, 344 Mo. 1227; Anderson v. Chicago, etc Railroad Co., 71 S.W.2d 508; Capp v. St. Louis, 158 S.W. 623, 251 Mo. 353-4; Burnam v. Chicago, etc., Railroad Co., 100 S.W.2d 858, 340 Mo. 25; Morrison v. Phelps Stone Co., 219 S.W. 393, 203 Mo.App. 142; Charles v. El Paso Elec. Ry. Co., 254 S.W. 1094; Foster v. Lusk, 129 Ark. 1, 194 S.W. 855; St. Louis & S. F. Railroad Co. v. Underwood, 194 F. 363; Union Pacific v. McDonald, 152 U.S. 262, 14 S.Ct. 619; Hogan v. Houston Belt, etc., Co., 148 S.W. 1166; Nurname v. Third Ave. Ry. Co., 172 N.Y.S. 188; Rost v. Packer Washington Co., 176 Ill.App. 245. (2) Defendant cannot escape liability in this case on the ground that its negligence in permitting these dangerous stacks of ties, attractive to children, to its knowledge to be on its unfenced premises for a period of six months, was "casual" negligence. "Casual" is defined as "happening or coming to pass without design, and without being foreseen or expected; accidental; . . ." Sonnenberg v. Berg's Market, 55 S.W.2d 494; March v. Bernardin, 76 S.W.2d 706. (3) The defendant was guilty of negligence in permitting these rows or stacks of ties to be piled loosely on its right-of-way while awaiting shipment, with the ends of the rows or tiers of piles extending abruptly and perpendicularly upward to a distance of 20 feet or more without a brace or safeguard of any kind to prevent their falling, when such precaution could readily have been taken. Jensen v. K. C., 168 S.W. 827; Morrison v. Phelps Stone Co., 219 S.W. 395; Charles v. El Paso Elec. Ry. Co., 254 S.W. 1094.

Spradling & Storm for respondent; Thomas J. Cole of counsel.

(1) Plaintiff, a minor, in entering upon the private property of the defendant without the consent of and without any invitation from the owner and in playing upon the ties stored upon defendant's lot, was a trespasser. Kelly v. Benas, 217 Mo. 1, 116 S.W. 557, 20 L. R. A. (N. S.) 903; Ford v. Rock Hill Quarries Co., 111 S.W.2d 173; Witte v. Stifel, 126 Mo. 295, 28 S.W. 891; Rallo v. Heman Const. Co., 291 Mo. 221, 236 S.W. 632. (2) The landowner or occupant of land owes no duty to trespassers or volunteers going upon his land for their own purpose, to maintain the land in any particular condition for their benefit, and volunteers, bare licensees and trespassers take the premises for better or for worse, as they find them, assuming the risk of injury from their condition, the owner being liable only for concealed spring guns, or other hidden traps intentionally put out to injure them, or any form of willful, illegal force used toward them. Kelly v. Benas, 217 Mo. 1, 116 S.W. 557, 20 L. R. A. (N. S.) 903; Overholt v. Vieths, 93 Mo. 422; Kowertz v. Dible, 27 S.W.2d 61; Thompson on Negligence, secs. 1025, 1026; Sherman & Redfield on Negligence, sec. 505, p. 598. (3) The only exception recognized by this court to the rule of nonliability of the owner or occupier of premises for injuries to persons coming upon the premises without invitation is in cases where a small child was injured on a railroad turntable, which the court held to be such an inherently dangerous and attractive instrumentality as to constitute an implied invitation to small children to come upon the premises and play upon it. Koons v. St. L. & I. M. Railroad Co., 65 Mo. 592; Nagel v. Mo. Pac. Railroad Co., 75 Mo. 693; Berry v. St. L., Memphis & So. Railroad Co., 214 Mo. 593, 114 S.W. 27. (4) This court has consistently refused to extend the exception or enlarge the doctrine of attractive nuisance to include other instrumentalities or conditions of premises alleged to be inherently dangerous and attractive to small children. Kelly v. Benas, 217 Mo. 1, 116 S.W. 557; Howard v. St. Joseph Transmission Co., 316 Mo. 317, 289 S.W. 597; State ex rel. Kansas City L. & P. Co. v. Trimble, 285 S.W. 455, 315 Mo. 32; Blavatt et ux. v. Union El. L. & P. Co., 71 S.W.2d 736; Buddy v. Union Term. Ry. Co., 276 Mo. 276, 207 S.W. 821; Rallo v. Heman Const. Co., 291 Mo. 221, 236 S.W. 632. (a) The Supreme Court has denied recovery under the doctrine where children have been injured while playing upon and about a pile of lumber, a pile of pipes, a pond or abandoned quarry, railroad cars, houses under construction, transmission lines, and numerous other instances and has held such instances not to be within the doctrine of the turntable cases, and it has only permitted recovery under the doctrine in one case, Schmidt v. Kansas City Distilling Company, 90 Mo. 284, dealing with puddle of hot water from exhaust pipe, and court granted plaintiff a new trial, and that case has been severely criticized in subsequent decisions. Kelly v. Benas, 217 Mo. 1, 116 S.W. 557; O'Hara v. Gas Light Co., 244 Mo. 395, 148 S.W. 884; Witte v. Stifel, 126 Mo. 295, 28 S.W. 891; Buddy v. Union Term. Ry. Co., 276 Mo. 276, 207 S.W. 821; Barney v. Hannibal & St. Joseph Railroad Co., 126 Mo. 372, 28 S.W. 1069; State ex rel. Kansas City v. Ellison, 281 Mo. 667, 220 S.W. 498; Howard v. St. Joseph Transmission Co., 289 S.W. 597, 316 Mo. 317; State ex rel. Kansas City L. & P. Co. v. Trimble, 285 S.W. 455, 315 Mo. 32; Blavatt et ux. v. Union E. L. & P. Co., 71 S.W.2d 736; Overholt v. Vieths, 93 Mo. 422; Rallo v. Heman Const. Co., 291 Mo. 221, 236 S.W. 632; Kowertz v. Dible, 27 S.W.2d 61; Houck v. C. & A. Ry. Co., 116 Mo.App. 559, 90 S.W. 1164; Hight v. Amer. Bakery Co., 168 Mo.App. 431, 151 S.W. 776. (5) A railroad company is not liable for an injury to a child while playing on a pile of railroad ties in a railroad yard under the attractive nuisance doctrine. M., K. & T. Ry. Co. v. Edwards, 26 S.W. 430, 32 L. R. A. 825; Kramer v. Southern Ry. Co., 37 S.E. 468, 52 L. R. A. 359; Carr v. Oregon-Washington Ry. Co., 261 P. 899; 60 A. L. R. 1434; Macon D. S. Railroad Co. v. Jordan, 129 S.E. 433, 34 Ga.App. 350; Gainey v. International & G. N. Ry. Co., 280 S.W. 852; Buchanan v. C., R. I. & P. Ry. Co., 119 So. 703. In all of the above cases, suits were instituted for damages for injuries to children, while playing on and around railroad ties on railroad property. Under the attractive nuisance doctrine the courts held that plaintiffs were not entitled to recover in any of the cases. (6) The owner of real estate has a right to pile lumber on his premises and, if a child or children go onto the premises and play on or around the lumber pile and, while so doing, is injured, the owner is not liable under the attractive nuisance doctrine. Kelly v. Benas, 116 S.W. 557, 217 Mo. 1; Branan v. Wimsatt, 298 F. 833, 36 A. L. R. 18; Sandstrom v. Minn. St. P. & S. Railroad, 198 Mich. 99, 164 N.W. 472; Baltimore v. DePalma, 137 Md. 179, 112 A. 277; 20 R. C. L. 89, sec. 79. In none of the above cases was the plaintiff permitted to recover. (7) This court has just recently held that the attractive nuisance doctrine does not apply to piles of lumber. Hull v. Gillioz, 130 S.W.2d 623; Kelly v. Benas, 217 Mo. 1.

OPINION

Tipton, P. J.

In the Circuit Court of Stoddard County, Missouri, a demurrer was sustained to appellants' amended petition. Appellants declined to plead further and judgment was rendered in favor of respondent.

Appellants' amended petition alleged that they were the parents of a minor son, age five years, and that he was killed through the negligence of respondent. Appellants' petition attempted to state a cause of action under the "attractive nuisance" doctrine. It alleged that respondent maintained on his unfenced and unguarded right-of-way a number of dangerous piles of cross-ties, piled or laid in rows or tiers to a height of 20 feet or more, and not cribbed, braced, or safeguarded in any manner at the ends of the rows or tiers to prevent them from rolling down upon and injuring children playing upon or about them; that these dangerous piles of ties were attractive to children who had habitually played on them for over a six months' period of time, and that the defendant knew of this fact in time thereafter to have cribbed, braced, or otherwise safeguarded the tie piles and prevented the injury to appellants' son which resulted in his death; and that...