Godfrey v. Kansas City Light & Power Company
| Citation | 253 S.W. 233,299 Mo. 472 |
| Parties | JAMES GODFREY, by JOHN GODFREY, His Next Friend, v. KANSAS CITY LIGHT & POWER COMPANY, Appellant |
| Decision Date | 02 July 1923 |
| Court | United States State Supreme Court of Missouri |
Appeal from Jackson Circuit Court. -- Hon. Samuel A. Drew, Judge.
Affirmed.
John H Lucas, William C. Lucas and Ludwick Graves for appellant.
(1) The leading case of Hanna v. Iowa Central Railway Co., 129 Ill.App. 134, is conclusive both as to the application of the attractive-nuisance doctrine and contributory negligence in the instant case. (2) We especially call the court's attention to the allegations of the declaration in the Hanna Case at page 135, and ask the court to compare them with the allegations in the case at bar. In the case at bar the plaintiff pleaded "that said tree was a walnut tree some twenty-five feet in height, standing in a ditch or depression, so that the lower branches of said tree were fifteen or sixteen feet from the level of said green immediately surrounding said tree; that said tree was a small tree and grew at an angle with its base, and in its growth had thrown out numerous crotches, so that said tree was very easy for boys, even of tender years, to climb." And plaintiff's instruction numbered 1 submitted to the jury "and that said tree was a small nut-bearing tree and grew in an angling or leaning position, and had low and numerous crotches, and was very easy for boys of tender years to climb, if so," etc. This clearly is a submission, and an unauthorized and unjustified extension of the "attractive-nuisance doctrine." The appellant has conclusively shown in the principal brief that this court has absolutely refused to extend this doctrine beyond the actual turn-table cases.
Garrett Howell & Boley, John J. Hyde and Atwood, Wickersham, Hill, Leirs & Chilcott for respondent.
(1) The overwhelming weight of the testimony establishes the fact that for many years the place where defendant maintained its deadly electric wire without insulation was a public recreation and amusement ground which large numbers of people, especially children, frequented. Under such circumstances this court, as well as the courts of sister states, have held a defendant liable for injuries occasioned to a child. Williams v. Gas & Electric Co., 274 Mo. 1; Thompson v. Slater, 197 Mo.App. 247; Kribbs v. Jeff. City L. & P. Co., 199 S.W. 263; Consolidated L. & P. Co. v. Healy, 65 Kan. 798, 70 P. 884; N. Y. & H. R. v. Fletcher, 271 Fed. (C. C. A.) 419; Edwards v. Kansas City, 104 Kan. 684, 180 P. 271; Talkington v. Washington W. & P. Co., 96 Wash. 386, 165 P. 87; Temple v. Light Co., 89 Miss. 1, 11 L. R. A. (N. S.) 449. See veritable brief on this identical question in 17 A. L. R. 833, and annotation in 14 A. L. R. 1023. (2) The boy was not guilty of contributory negligence as a matter of law. He testified he did not know of the dangerous presence of the wire before being injured. He could not be convicted of contributory negligence as a matter of law, because he had followed the instincts of childhood in climbing that walnut tree. Certainly any question of contributory negligence was a matter for the jury to pass upon. Williams v. Gas & Electric Co., 274 Mo. 1; 14 A. L. R. 1035; 17 A. L. R. 849. (3) No error was committed in the giving of instructions or the refusal of instruction offered by defendant. Instructions involving identical facts have been approved by this very division of the court. Williams v. Gas & Electric Co., 274 Mo. 1. (4) No error was committed by the court in permitting plaintiff's mother and others testifying to expressions of pain and the physical appearance of plaintiff. Lindsay v. K. C., 195 Mo. 166, 181; McHugh v. Railroad Co., 190 Mo. 95; Estes v. Railway Co., 110 Mo.App. 731; Fellhauer v. Railroad Co., 191 Mo.App. 137, 148; Bennett v. Nor. Pac. Railroad Co., 15 L. R. A. 465; C. C. & I. R. Co. v. Newell, 104 Ind. 269; Miss. Cent. Railroad Co. v. Turnage, 24 L. R. A. (N. S.) 253, and cases annotated; N. P. Co. v. Urlin, 158 U.S. 271, 39 L.Ed. 977. (5) The evidence showed permanent impairment of the use of the boy's left arm; nervous system permanently injured; his eyes affected and growth stunted, and other grievous injuries showing a probable complete destruction of the ability of the boy to work and earn money. Larger amounts have been sustained for injuries not so severe. Under no circumstances was the verdict in the slightest degree excessive. Meeker v. Union Electric Light & Power Co., 216 S.W. 934; Stottler v. Railroad, 200 Mo. 107, 142; Pennington v. Railways Co., 213 S.W. 137, 140; Stedwell v. Chicago, 297 Ill. 486, 17 A. L. R. 829; Erie R. R. Co. v. Collins, 253 U.S. 77, 64 L.Ed. 794.
Ragland, White, Walker and James T. Blair, JJ., concurs; Graves, J., dissents in separate opinion, in which Woodson, C. J., concurs; David E. Blair, J., dissents.
OPINIONIn Banc
-- Personal injury suit. On the tenth day of August, 1919, the plaintiff, a boy about twelve years of age, while in a walnut tree gathering walnuts, came in contact with one of defendant's uninsulated electrical wires which ran through said tree, and received a shock therefrom which burned and seriously injured him.
The tree was in the pasture on the McElroy farm located on the Missouri River, a mile east of the eastern city limits of Kansas City. The land adjoining on the west belonged to the Missouri Pacific Railroad Company, and on the east to the Standard Oil Company. The town of Sugar Creek was located about a quarter of a mile or less east of the south part of the farm and the Standard Oil Company's plant, with its Sugar Creek refinery and numerous tanks and buildings, was located about the same distance east of the north part of said farm. The intervening land belonged to the Standard Oil Company, but was mostly vacant and unimproved. The south part of the farm, embracing about 100 acres or more, was known as the McElroy pasture.
Said farm, including said pasture, had been platted and divided into ten-acre lots, but no streets or alleys had been platted therein. But the property immediately adjoining said farm and pasture on the south, and formerly a part of said farm, had been platted by the owners and called Jackson Lithia Place. By this plat, three east-and-west streets were laid out: Pacific Street immediately south of and adjoining the pasture; parallel with it and south of it a block, was Scarritt Avenue; and parallel with Scarritt Avenue and a block south of it, was Kentucky Avenue. Kentucky Avenue was a paved street and connected with Independence Road on the west running into Kansas City, and on the east extended into the town of Sugar Creek. There were also six streets running north and south about 300 feet, or a block, apart. Home Avenue was on the west line of the sub-division; then running east in order were Cedar, Huttig, Ash, Hardy and Poplar avenues. The two north-and-south blocks were about 600 feet in length. Huttig Avenue was paved with macadam from Kentucky Avenue to Pacific Street. Pacific Street was not paved or graded, but was partly in use. The other streets had been partly graded and oiled.
The whole farm for some years had been enclosed with wire fence. There was a stile at the southwest corner of the pasture; also two gates in the south fence, one at the north end of Ash Avenue, and the other at the north end of Huttig Avenue.
The plaintiff had lived with his parents for a number of years on Poplar Avenue in said Jackson Lithia Place, about a block and a-half south of Pacific Street, and a short block, 235 feet, west of the east line of the pasture extended. The walnut tree in which plaintiff was injured was about a quarter of a mile north of Pacific Street, a few feet west of the east line of the pasture. It was in a small grove of about fifty walnut trees. It was on high ground, but in a draw or depression. There was a pond about 100 feet in diameter, in the pasture, about 700 feet north of Pacific Street and 900 feet west of the walnut grove. Still further north of both the grove and the pond were the old McElroy home or mansion and the house of the care-taker.
At the time of the accident, and for a number of years before, the plaintiff's evidence tended to show that, within one block south of Pacific Street or the south line of the pasture and within three blocks east-and-west, there were as many as thirty or forty residences. And within the general vicinity of two blocks south there were as many as 150 to 200 residences. On the north side of Kentucky Avenue, between Home and Cedar avenues, there was a public school attended by some 300 pupils and a church at the northeast corner of Ash and Kentucky avenues. That families, including a large number of children, lived in these houses, and that they and the school children and teachers and church and lodge people and boy scouts used the pasture for the purpose of holding picnics and camping parties, gathering flowers and pawpaws and walnuts. The children also used it for playing ball and other games. The boys used the pond very frequently, as a swimming hole in the summer time, and to skate upon in the winter. The pasture was also used by some of the neighbors, including plaintiff's father, to pasture their cows. The employees of the Standard Oil Company also went through the pasture to and from their work.
Plaintiff's evidence also tended to show that neither the owner nor the care-taker ever objected to this use on the part of the public, except to the use of the swimming hole in the daytime. That there were no signs or other warnings against the public using the property until after the accident occurred.
The defendant's electric wires extended from its pole line on Kentucky Avenue north through...
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