Hull v. Gillioz

• Citation: 130 S.W.2d 623
• Decision Date: 07 July 1939
• Docket Number: No. 35609.,35609.
• Parties: BETTY RUTH HULL, a Minor, by C.O. HULL, her next friend, v. M.E. GILLIOZ, doing business as M.E. GILLIOZ CONSTRUCTION COMPANY, Appellant.
• Court: Missouri Supreme Court

130 S.W.2d 623

BETTY RUTH HULL, a Minor, by C.O. HULL, her next friend, v. M.E. GILLIOZ, doing business as M.E. GILLIOZ CONSTRUCTION COMPANY, Appellant.

No. 35609.

Supreme Court of Missouri.

Division One, July 7, 1939.

Appeal from Greene Circuit Court. — Hon. Warren L. White, Judge.

AFFIRMED.

Mann, Mann & Miller and Finch & Finch for appellant.

(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 building materials 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; Shearman & 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. Ry. 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 v. Union E.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 granting 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 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. Dibble, 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.

Frank B. Williams, William R. Collinson and Emil B. Corzine for respondent.

The Missouri authorities hold that a possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land if: Koons v. St. L. & I.M. Ry., 65 Mo. 592; Nagel v. Mo. Pac. Ry. Co., 75 Mo. 653; Fink v. Mo. Furnace Co., 10 Mo. App. 61; Swyer v. Mo. Pac. Ry., 12 Mo. App. 597; Porter v. Anheuser Busch Brewing Co., 24 Mo. App. 1; Schmidt v. Kansas City Distilling Co., 90 Mo. 284; Overholt v. Vieths, 93 Mo. 422; Rushenberg v. St. Louis, I.M. & S. Ry., 109 Mo. 112; Witte v. Stifel, 126 Mo. 295, 28 S.W. 891; Houck v. Ry. Co., 116 Mo. App. 559, 90 S.W. 1164; Berry v. Railroad Co., 214 Mo. 593, 114 S.W. 27; Kelly v. Benas, 217 Mo. 1, 116 S.W. 557; O'Hara v. Laclede Gas Light Co., 244 Mo. 395, 148 S.W. 884; Hight v. Bakery Co., 168 Mo. App. 431, 151 S.W. 776; Buddy v. Railroad Co., 276 Mo. 276, 207 S.W. 821; Morrison v. Phelps Stone Co., 203 Mo. App. 142; State ex rel. K.C. v. Ellison, 281 Mo. 667, 220 S.W. 498; Rallo v. Heman Const. Co., 291 Mo. 221, 236 S.W. 632; State ex rel. v. Trimble, 315 Mo. 32, 285 S.W. 455; Dowertz v. Dible, 27 S.W. (2d) 61; Blabatt v. Union E.L. & P. Co., 71 S.W. (2d) 736; Anderson v. C.G.W. Ry. Co., 71 S.W. (2d) 508. Clause A. — If the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass. Koons v. St. L. & I.M. Ry., 62 Mo. 592; Nagel v. Mo. Pac. Ry. Co., 75 Mo. 653; Dwyer v. Mo. Pac. Ry., 12 Mo. App. 597; Schmidt v. K.C. Dis. Co., 90 Mo. 284; Leeright v. Ahrens, 60 Mo. App. 118; Witte v. Stifel, 126 Mo. 295; Houck v. Railroad Co., 116 Mo. App. 559; Berry v. Railroad Co., 214 Mo. 593; Kelly v. Benas, 217 Mo. 1; O'Hara v. Laclede Gas Light Co., 244 Mo. 395; Morrison v. Phelps Stone Co., 203 Mo. App. 142; State ex rel. v. Trimble, 285 S.W. 455; Howard v. St. Joe Trans. Co., 289 S.W. 597; Kowertz v. Dible, 27 S.W. (2d) 71; Anderson v. C.G.W. Ry. Co., 71 S.W. (2d) 508. Clause B — If the condition is one of which the possessor knows or should know and which he realizes or should realize as involving an unreasonable risk of death or serious bodily harm to such children. Nagel v. Mo. Pac. Ry., 75 Mo. 653; Fink v. Mo. Furn. Co., 10 Mo. App. 61; Porter v. Anheuser Busch, 24 Mo. App. 1; Leeright v. Ahrens, 60 Mo. App. 118; Witte v. Stifel, 126 Mo. 295; Kelley v. Parker Washington Co., 107 Mo. App. 490; Buddy v. Railroad Co., 276 Mo. 276; Anderson v. C.G.W. Ry. Co., 71 S.W. (2d) 508. Clause C — If the children because of their youth do not discover the condition or realize the risk involved in intermeddling in it or in coming within the area made dangerous by it. Koons v. St. L. & I.M. Ry., 65 Mo. 592; Nagel v. Mo. Pac. Ry., 75 Mo. 653; Fink v. Mo. Furnace Co., 10 Mo. App. 61; Buddy v. Railroad Co., 276 Mo. 276; State ex rel. v. Trimble, 295 S.W. 455.

HYDE, C.

This is an action by a minor plaintiff (her guardian has been substituted for next friend), for damages for personal injuries. Plaintiff had judgment for $12,500, and defendant has appealed.

Plaintiff was injured by the fall of a heavy iron beam when she was playing with other children on defendant's premises. Plaintiff's case is based on the attractive nuisance doctrine. The sole question on this appeal is the sufficiency of the evidence to make such a case. Therefore, the facts hereinafter stated are those shown by the evidence most favorable to plaintiff. Defendant was a contractor engaged in construction work. He owned a lot eighty feet wide and 140 feet deep, on the north side of Main Street or Front Street, in the southwest part of the City of Monett. This street was the closest street to the railroad tracks and yards. There were no houses on the south side of the railroad. This lot was used by defendant as a storage place for heavy material used on construction jobs. This material consisted of "heavy beams and piling and heavy timbers." Among these were some steel I-beams about forty-three feet long, twenty-four inches high, with a nine and one-fourth inch flange at the top and bottom, weighing about seventy-two and one-half pounds per lineal foot. The upright part, or web, was "a little better than half an inch thick." These were used "for the false work to support the concrete" in building bridges and viaducts. After such use defendant would "release those beams and take them out," when such concrete work was properly set, and "then return them to the material yard." In this yard they were kept upright (standing on one flange) instead of lying on the edges of both flanges, because "one reason (is) they won't warp that way, and the other is we paint the beams when they come in so they won't weather." They would collect rain and snow and "naturally rust" if not kept in that position. These I-beams were stored in two layers. The bottom layer was on heavy timbers (10×10, 12×12, and 14×14), while the top layer was on 4×4 and 12×4 timbers placed on the bottom layer of I-beams. "Part of these beams had been there between six and seven years, and some six or seven months prior to that accident; some had been in and out." These beams were moved in and out with trucks and rollers, and also at times a crane was used. They were placed on the west side of the lot with the south ends of the beams about 7 feet north of the sidewalk. This part of the lot was somewhat higher than the sidewalk. The material yard was not fenced and defendant's evidence was that a fence would have interfered with the moving in and out of the heavy materials stored there. On the south end of the stack of round piling on the east side of the lot, there was nailed a sign, partially broken off, which contained the words "Keep Off." Part of the letters were...