Kansas City Southern Ry. Co. v. McDaniel

• Decision Date: 28 October 1942
• Docket Number: No. 12278.,12278.
• Citation: 131 F.2d 89
• Parties: KANSAS CITY SOUTHERN RY. CO. v. McDANIEL.
• Court: U.S. Court of Appeals — Eighth Circuit

131 F.2d 89 (1942)

KANSAS CITY SOUTHERN RY. CO. v. McDANIEL.

No. 12278.

Circuit Court of Appeals, Eighth Circuit.

October 28, 1942.

Joseph R. Brown, of Fort Smith, Ark., for appellant.

J. F. Quillin, of Mena, Ark. (George R. Steel and George E. Steel, both of Nashville, Ark., on the brief), for appellee.

Before SANBORN, THOMAS, and JOHNSEN, Circuit Judges.

THOMAS, Circuit Judge.

This is an appeal from a judgment entered upon the verdict of a jury against the appellant railroad company, referred to hereinafter as the defendant, for $750 damages for the death of Chloe June McDaniel, a child about three years of age. Her death was the result of the alleged negligence of defendant in maintaining on its right of way a stack of poles constituting an attractive nuisance.

The suit was brought in the state court by plaintiff as administrator of deceased's estate against the defendant Railway Company, against Joslyn Manufacturing and Supply Company (hereinafter called the Supply Company), and against two of its employees. The case was removed to the district court by the defendant on the ground of diversity of citizenship and separable controversy. Thereafter plaintiff dismissed against the Supply Company and its employees and entered into covenants with them not to sue, in consideration of which he received $1,000 from the Supply Company and $100 from the employees.

In his petition plaintiff alleged that at the city of Mena, Arkansas, the defendant maintained a place on its right of way adjacent to a thickly populated portion of the city and about one-fourth of a mile from its passenger station, for stacking poles for the purpose of transportation over its lines; that with the consent and approval of defendant the Supply Company and its servants placed upon said site a large stack of pine poles for shipment; that the stack of poles was not staked, tied or enclosed; that with the knowledge of defendant children were accustomed to congregate and play at said place; that the place was dangerous, was attractive to children, and that with knowledge of the situation defendant took no measures for their protection; that Chloe June McDaniel lived near the place and while at play, having been attracted there by the stack of poles, and while climbing upon the same, a pole rolled off the stack upon her, causing her death. It was alleged that the defendant negligently permitted the attractive and dangerous condition to continue after it knew or by the exercise of care could have known of such condition.

The defendant denied the allegations of the petition, alleged that the death of the child was due solely to the negligence of plaintiff, father of the child, in permitting her to trespass upon the land, and "that this suit was originally brought against the said Joslyn Manufacturing and Supply Company but thereafter the said Manufacturing and Supply Company made a settlement with plaintiff and the suit was dismissed as to it in consideration of plaintiff giving said Manufacturing and Supply Company a covenant not to sue. Defendant railway company pleads said covenant not to sue as a satisfaction of any claim plaintiff might attempt to set up against defendant railway company, and alleges that the giving of said covenant not to sue is a complete bar of plaintiff's attempt to sue defendant railway company."

Upon the trial defendant's motion for a directed verdict on the ground that plaintiff had failed to establish a cause of action was overruled. The case was submitted to the jury by instructions to which no exception is taken in this court, upon the sole ground of the negligent maintenance of an attractive nuisance. After judgment was entered defendant moved for an order satisfying the judgment on the ground that it was entitled to such order under Act 315, Arkansas Session Laws 1941, because in consideration of $1,100 plaintiff had released its joint tort-feasors, the Supply Company and its employees. The motion was overruled.

The defendant seeks reversal on the grounds (1) that the court erred in overruling defendant's motion for a directed verdict because (a) a stack of poles is not as a matter of law an attractive nuisance and because (b) the poles were placed upon the right of way by, and were owned and under the control of, Joslyn Manufacturing and Supply Company, which alone was responsible to plaintiff; and (2) that the court erred in overruling defendant's motion to satisfy the judgment against it because plaintiff had released the Supply Company and its employees, joint tort-feasors, in consideration of covenants not to sue them.

The issues are controlled by the laws of Arkansas. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487.

The contention that a stack of poles is not an attractive nuisance as a matter of law is without merit. The Supreme Court of Arkansas has uniformly held that whether a dangerous instrumentality constitutes an attractive nuisance is a question for the jury. Arkansas Power & Light Co. v. Kilpatrick, 185 Ark. 678, 49 S.W.2d 353, 356; Nashville Lumber Co. v. Busbee, 100 Ark. 76, 139 S.W. 301, 38 L.R.A.,N.S., 754; St. Louis, I. M. & S. Ry. Co. v. Waggoner, 112 Ark. 593, 166 S.W. 948, 52 L. R.A.,N.S., 181; Central Coal & Coke Co. v. Porter, 170 Ark. 498, 280 S.W. 12; Brinkley Car Works & Mfg. Co. v. Cooper, 75 Ark. 325, 87 S.W. 645; Arkansas Valley Trust Co. v. McIlroy, 97 Ark. 160, 133 S. W. 816, 31 L.R.A.,N.S., 1020; Valley Planing Mill v. McDaniel, 119 Ark. 139, 170 S.W. 994; Foster v. Lusk et al., 129 Ark. 1, 194 S.W. 855.

The evidence under the Arkansas law presented a jury question. It is shown that the deceased with a companion was playing upon and about a stack of pine poles on the right of way of the defendant when a pole rolled off the pile and injured...