Kelly v. Benas

• Citation: 217 Mo. 1,116 S.W. 557
• Parties: KELLY et al. v. BENAS et al.
• Decision Date: 25 February 1909
• Court: United States State Supreme Court of Missouri

116 S.W. 557

217 Mo. 1

KELLY et al. v. BENAS et al.

Supreme Court of Missouri, Division No. 1.

February 25, 1909.

1. NEGLIGENCE (§ 2) — LIABILITY IN GENERAL.

The general rule is that there must be a duty raised by the law and breached by the defendant before an action for negligence lies.

2. NEGLIGENCE (§ 33) — DANGEROUS PREMISES — DUTY AS TO TRESPASSERS OR VOLUNTEERS.

The general rule as to trespassers or volunteers going on land for their own purpose is that the owner or occupant owes no duty to maintain it in any particular condition for their benefit.

3. NEGLIGENCE (§§ 32, 33, 38) — DANGEROUS PREMISES — ASSUMPTION OF RISK — EXTENT OF OWNER'S LIABILITY.

In general, 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, and the owner is liable only for concealed spring guns or other hidden traps intentionally put out to injure them, or any form of willful, illegal force used towards them, though as to invitees he owes the active duty to exercise reasonable care for their safety, and as to travelers mistaking the course of the road he must not make changes in his land so near as to put them in danger.

4. NEGLIGENCE (§ 7) — LIABILITY TO CHILDREN IN CARRYING ON BUSINESS.

With the exception of cases where the nature of the business is such as to present peculiar attractions to children, and the rule that contributory negligence of children is to be gauged with reference to infantile capacity, the liability for negligence as to children in carrying on a business does not exceed liability to others.

5. NEGLIGENCE (§ 39) — DOCTRINE OF TURNTABLE CASES — APPLICATION TO LUMBER PILES.

Lumber piles are not attractive nuisances as defined in the Turntable Cases.

6. NEGLIGENCE (§ 32) — CHILDREN PLAYING IN LUMBER YARD — EXPRESS OR IMPLIED INVITATION.

The use of a lumber yard as a playground cannot be held to be by the express or implied invitation of the owners because their watchman did not always drive children away, and was off duty when a child was injured while playing therein.

Appeal from St. Louis Circuit Court; Jesse A. McDonald, Judge.

Action by Patrick and Nellie Kelly against Henry and George Benas. From a judgment for defendants, plaintiffs appeal. Affirmed.

Plaintiffs (father and mother of Michael Kelly) sued for the death of Michael, an infant of tender years, laying their damages at $5,000, and grounding their action on negligence. Proof went in pro and con. At the close of the evidence the court instructed the jury that under the pleadings and evidence their verdict must be for defendants. Thereupon plaintiffs took a nonsuit with leave. Failing to get it set aside, they appeal.

The Pleadings.

The petition charges the intermarriage of plaintiffs; that their son, Michael, was the rise of nine years old on the 18th of June, 1905; that defendants were the owners, occupants, and proprietors of certain premises on South Second street, in the city of St. Louis, and the lumber and lumber yard thereon; that said premises opened on said street and on a public alley, were unfenced and unguarded, and that children in large numbers played on the premises, all of which defendants well knew; that such open lumber yard was an attraction for children to play on said premises at and about where the lumber was piled, as defendants well knew; that children in large numbers were attracted to play at and about the piles of lumber upon said premises, and were endangered if such lumber be negligently piled, all of which defendants well knew before Michael was killed; that defendants negligently piled lumber in their yard so loosely, insecurely, and without any fastenings that said lumber fell upon Michael and injured him so that he died; that on said date defendants had piled and were maintaining a pile of lumber in said yard in such manner that long pieces of lumber and timber were laid on top of shorter pieces, to a great height; that thereby said pile was made top-heavy and liable to fall; that the pile was built without braces or cleats to secure it from falling, and was without fastenings of any kind to prevent its falling; that a pile so piled was dangerous to persons near the lumber, because liable to fall and injure them; that it was especially dangerous to children attracted by said premises to be and play near said pile, as defendants well knew at all said times, notwithstanding which defendants so negligently piled and maintained said lumber pile in such dangerous and defective condition that on said date Michael was attracted to said premises to be and play thereon near said dangerous pile of lumber, when by reason of its defective condition it gave way, and the lumber falling upon Michael fractured his skull, and otherwise so broke his bones and crushed him that he died two days later.

The answer was a general denial, and a plea of the negligence of Michael, in that he with some companions wrongfully trespassed upon the premises, and carelessly and negligently caused lumber to fall upon him; and, moreover, that the injuries of Michael were caused, or directly contributed to, by the carelessness and negligence of plaintiffs in permitting their said son wrongfully to trespass upon said premises and the lumber piles.

The reply was a general denial.

The Facts.

It is agreed on all sides that defendants for many years maintained a box factory across the street from the locus; that they owned a lumber yard maintained on the north half of a certain lot, and that they rented the premises from month to month; that at the time in hand they had several piles of lumber on this half lot; that said half lot never had been fenced in front or rear, but wagons drove through the yard directly from Second street to the alley. That plaintiffs lived in an upper apartment in a house next door to the lumber yard.

Plaintiffs put in proof tending to show that they did not allow Michael to play in the lumber yard, and that, whenever they found him there in disobedience to their instructions, they admonished him and brought him away; that the yard is located in a populous part of the city of St. Louis, and many children lived in that region; that the pile killing the boy had been there several months, and was 12 feet and upwards high, was some distance from the alley, and some distance from Second street; that it had no cleats or "stick binders," and no bracing of any kind, and that, while short pieces were on the bottom, longer pieces were on top. They also put in evidence tending to show that children played in the yard frequently, mostly afternoons after school hours, and Sundays; that the right way to pile lumber safely was to pile it with cross-binding sticks or cleats to brace the pile. Patrick Kelly testified that defendant George Benas told him in the presence of one Carraher and his own foreman, the next day after the accident, that he (Benas) knew boys played there, and that the pile was not in good condition. Carraher also testified that he heard Benas say that the lumber was not piled right. Plaintiffs' evidence further tended to show that at about 7 o'clock Sunday evening, on said 18th day of June, Michael's father was eating his supper when the boy left the room and went downstairs. In about 15 minutes the crash of falling lumber was heard, and Michael was found, under some boards that had fallen off said pile, mortally hurt. The boards were about 16 feet long, 2 inches thick, and 12 inches wide. Their evidence further tends to show that, at the time the upper part of the pile fell off, nobody was on it, and that Michael was standing 4 or 5 feet from it watching another boy fly a kite, when all at once the lumber gave way and crushed him. There was evidence of a negative character put in by plaintiffs to the effect that neither the defendants or their watchman had been seen...