Keck v. Woodring

• Decision Date: 13 July 1948
• Docket Number: Case Number: 33108
• Citation: 201 Okla. 665,208 P.2d 1133,1948 OK 174
• Parties: KECK v. WOODRING
• Court: Oklahoma Supreme Court

1948 OK 174

208 P.2d 1133

201 Okla. 665

KECK v. WOODRING

Case Number: 33108

Supreme Court of Oklahoma

Decided: July 13, 1948

Syllabus

¶0 1. NEGLIGENCE - Assumption of risk by one entering private property and going upon dirt loading machine without invitation, express or implied.

One entering private property and going upon a dirt loading machine thereon without an invitation, express or implied, assumes the risk of such machine falling and injuring him.

2. SAME - ATTRACTIVE NUISANCE - Rule not invoked where minor is over age of 14 and presumed prima facie to be capable of exercise of judgment and discretion.

In an action for damages founded on the attractive nuisance doctrine, a minor over the age of 14 is prima facie presumed to be capable of the exercise of sufficient judgment and discretion to know and appreciate the danger that attends his ordinary acts and to have legal capacity to assume the risk of such acts.

Appeal from District Court, Custer County; W.P. Keen, Judge.

Action by Robert Woodring, a minor, by next friend, against P.E. Keck. Judgment for plaintiff, and defendant appeals. Reversed, with directions.

A.O. Manning, of Fairview, for plaintiff in error.

R.L. Minton, of Sayre, and Arney & Barker, of Clinton, for defendant in error.

WELCH, J.

¶1 This is an action for damages instituted by Robert Woodring, a minor, by his father and next friend, R.L. Woodring, against G.E. Keck.

¶2 The petition states that plaintiff was a minor of the age of 15 years; that defendant left a large dirt loader machine upon certain described church grounds and premises; "that the plaintiff and a number of other boys and girls had congregated around and upon said loader machine and were standing and talking to each other; that the plaintiff himself was standing upon the crane part of the loader, which part was left in the air at about a 45-degree angle, and that as he was standing with his right hand ahold of the chain which was used to raise and lower the crane part of said loader, suddenly said crane part of said loader fell to the ground and that as it fell the plaintiff's right hand was drawn into a pulley by the chain and his fingers were severly mashed and amputated. That said accident and his resulting injuries were the direct and proximate result of the carelessness and negligence of the defendant in the following respects:

"That said defendant carelessly and negligently permitted said loader to remain on the premises of said church with the loader or crane part lifted into the air where it was likely to fall upon and injure the many persons whom he knew or should have known would pass near or to come in contact with said machine, and particularly this plaintiff.

"That said defendant carelessly and negligently failed to place the loader crane upon the ground and in such position that it could not fall and injure persons."

¶3 Defendant denied negligence and asserted trespass and that the injuries were due to the negligence of the plaintiff.

¶4 A verdict was returned in favor of the plaintiff. From the judgment rendered therein, defendant appeals.

¶5 The case was presented on the theory of "attractive nuisance." The specific act of negligence complained of was the failure of the defendant to place the loader crane upon the ground and in such position that it could not fall and injure persons.

¶6 Some months before the accident, defendant, with permission of the pastor in charge, had parked his dirt loading machine upon the grounds of a rural church. The grounds consisted of an acre of unenclosed land lying along the public highway. On one end of the grounds there was located a church auditorium, a building wherein the pastor resided, and a garage. At the other end of the grounds defendant's machine was parked and near a hog pen and an outdoor toilet. The machine was within sight of those traveling upon the highway. Robert Woodring, herein referred to as plaintiff, testified that he had observed the machine from time to time over a period of months and while driving along the highway; that on a Sunday afternoon, the day of the accident, he and others were out driving in an automobile and drove into the church yard for the purpose of looking over and examining the machine; that while examining the same he and others climbed upon the machine and out upon the crane or dirt loading conveyor arm of said machine and while they were there it fell to the ground producing the injury complained of The record reflects that at the time of the accident Robert was at the age of 14 years and ten months; that he was a high school student and an accomplished musician and piano player. There was testimony to the effect that children often played upon the churchyard and that the machine was of such...