Henry v. The First Nat'L Bk. of Kansas City
| Citation | 115 S.W.2d 121 |
| Decision Date | 07 March 1938 |
| Docket Number | No. 18966.,18966. |
| Parties | TOMMY RAY HENRY, A MINOR, BY HARRY ALBERT HENRY, GUARDIAN, RESPONDENT, v. THE FIRST NATIONAL BANK OF KANSAS CITY, A CORPORATION, APPELLANT. |
| Court | Missouri Court of Appeals |
Appeal from Jackson Circuit Court. — Hon. Daniel E. Bird, Judge.
AFFIRMED.
Leon Greenebaum and O'Hern & O'Hern for respondent.
Henry S. Conrad, L.E. Durham, Hale Houts and Wright Conrad for appellant.
From a judgment of $2,750 for personal injuries rendered against it in the circuit court of Jackson county, Missouri, in favor of the plaintiff, the defendant, after unsuccessful motions for new trial and in arrest of judgment, appeals.
The plaintiff, a minor, by his father as guardian, filed his petition in such court on December 28, 1935, and thereafter filed an amended petition, upon which the cause, with the defendant's answer thereto, was tried before the court with a jury at its regular May term, 1936, resulting in the judgment above mentioned, appealed from.
The plaintiff was injured on February 17, 1935, by having his right leg severely burned when his clothing caught fire from an open trash fire about which he was playing. He was four years old at the time.
The fire was in a yard or open space near the northwest corner of Van Brunt and Seventh Street, in Kansas City, Missouri, at the rear of and adjacent to a small apartment building fronting east on Van Brunt, known as 638-640 South Van Brunt, and four houses fronting south on Seventh Street. The property, including the yard, was under one ownership, an oblong tract of ground with a frontage of about 120 feet on Seventh Street and 138 feet on Van Brunt. It was part of a trust estate created by one L. Fred Evans with the defendant, The First National Bank, as trustee.
The defendant, at the time in question, as such trustee, was looking after and renting the apartments in the apartment building and the houses. The plaintiff's family was a tenant of the third house west of Van Brunt. The trash fire had been set out by one of the tenants in the apartment building, William Brislin, upon his own initiative and not, so far as the record shows, upon any direction from or permission of the defendant. The fire was back of the apartment, about ten feet from an elm tree.
At the time the plaintiff was burned, the fire was smoldering or, at least, had burned down considerably. The plaintiff, according to other witnesses present, was standing in the edge of the embers, reaching for a piece of bread that was in the fire, when the right leg of his trousers or overalls caught on fire. Mr. Brislin, who had left prior to that time, testified that the fire was "practically" out when he left it.
The plaintiff, when his clothes caught fire, ran screaming toward his home. The first grown person to get on the scene was Mrs. Carter, who was attracted by the screaming of her daughter Helen. who was in the yard with the plaintiff. She ran, meeting the plaintiff, gathered him in her arms, and beat out the flames with her hands. The plaintiff's father came immediately, and the boy was wrapped in a coat and taken at once to Mercy Hospital.
The plaintiff was kept and treated at the hospital for some eight months. Skin obtained from above the knees of both legs was grafted upon the burned area, leaving graft scars above the knees and forming a grafted skin covering over the burned area, which extended from the knee toward the ankle on the outside of the right leg. The plaintiff was seriously and permanently injured.
He was able to start to kindergarten in January, 1936, at the beginning of the second semester. His wounds, at such time, had healed. His parents testified that he limped some when he became tired but that otherwise he was not troubled in the use of his leg: and the mother testified that the leg had become stronger and the limp had lessened or disappeared. The plaintiff's medical witness said that the development of the injured leg would depend upon the extent to which the boy used it, and expressed the opinion that the strength of the leg might possibly be impaired "for certain effort." The defendant's medical witness testified that the burned leg was smaller than the other leg due to the destruction of some fatty tissue but that there had been no impairment of the muscle; that he detected no difference in the strength of the two legs and there appeared to be no pain in the leg and no limitation of motion; and that the thinness of the grafted skin would make the leg more sensitive to cold or extreme heat but that the use of the leg would not be impaired.
The plaintiff pleaded in his amended petition and introduced in evidence an ordinance prohibiting any person from burning any trash, papers, or other combustible material within the city limits of Kansas City unless the same was "securely confined in a refuse burner constructed of brick, plate iron, steel or wire with all openings in said burner securely covered by a cover of screen wire" and an ordinance providing:
The plaintiff's amended petition charges that the yard in which the trash was burned was open and was maintained by the defendant for the common use of all of the tenants in the apartment building fronting on Van Brunt and in the four detached houses fronting on Seventh Street and that the defendant owed the duty to maintain the yard in reasonably safe condition for the benefit of all the tenants and their children.
At the time in question and subsequent to January, 1934, the defendant looked after the property through a Mr. Roy Moore, an employee in charge of rentals in the defendant's trust department. Mr. Moore, in turn, had arranged with Mrs. Stivers, a tenant of one of the apartments, to assist in the management of the property and in the renting of the same and in the collection of the rentals up until November, 1934. During the period Mrs. Stivers assisted him, Mr. Moore made regular monthly visits to the property to take up the rents collected by her. In November, Mrs. Stivers moved away; and, thereafter, Mr. Moore was the only person regularly employed and paid by the bank who collected rents and looked after the property, until some time after the plaintiff was injured when he made arrangements with Mrs. Allen to assist him as local manager of the premises.
The yard in which the trash fire occurred was open, without fences or divisions. There is evidence that the tenants of the houses, including the plaintiff's family, were told by Mrs. Stivers, while she was there, that the yard was open for the common use; that the children of the tenants, some sixteen in number, used it as a playground; and that the tenants stretched their clotheslines across it and hung out their washings.
It appears from the evidence that Mrs. Stivers, during the time she assisted Mr. Moore, provided a large, empty, metal, oil barrel or drum with one end knocked out, which she kept in the yard about ten feet from the elm tree and in the rear of the apartment for the use of the various tenants, both of the apartment and of the houses, in burning their trash. When she moved away in November, 1934, she took the drum or barrel with her; and, from that time until the time of the injury to the plaintiff, on February 17, 1935, there was no regular trash burner provided by the defendant or its agents in charge of the property. It appears from the evidence that the houses and apartments as well were heated by stoves and that most of the tenants during the cold weather, when the stoves were in use, burned their papers and trash in their stoves. There is evidence, however, that, after Mrs. Stivers left and took away the oil barrel or drum which she had provided, some of the tenants, from time to time, burned trash out in the open, without any container, at a point near where Mrs. Stivers had kept the oil barrel or drum. At this point, there was a charred area, the result of the fires. From the testimony of some witnesses, trash was burned by some of the tenants frequently — once, twice, and three times a week — and by some oftener. Mr. Brislin, the tenant in the apartment house who set out the trash fire by which the plaintiff was burned, and Mrs. Brislin testified that they had been burning trash in the yard about once a week, usually on Sundays (as on the day in question), when the weather permitted, but that customarily they had been burning their trash in their stove during the winter months.
Mr. Henry, the plaintiff's father, testified that, after Mrs. Stivers left, he told Mr. Moore there should be a trash burner in the yard because it was dangerous to burn papers on the bare ground because of the children playing in the yard; that Mr. Moore asked the plaintiff's father if he knew where he could get a trash burner and that he replied that he did; and that Mr. Moore asked him to get one but the plaintiff's father replied that he did not have any money, to which Mr. Moore answered, "All right, we will see about it then." There is no evidence of any subsequent conversation by Mr. Moore with the plaintiff's father or any one else in respect to the matter, and no trash burner seems to have been provided.
The evidence is to the effect that the plaintiff was burned about our o'clock in the afternoon on the day in question and that Mr. Moore was there on that same afternoon from about three-thirty o'clock until after the plaintiff's injury, going from one building to another, calling upon the various tenants.
The amended petition is voluminous and embraces twenty-six pages of the record. We shall not undertake to analyze or set it out in detail. It would be almost an impossible task to do so succinctly and...
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