Kemp v. Doe Run Lead Co., 21349.

• Decision Date: 03 February 1931
• Docket Number: No. 21349.,21349.
• Parties: KEMP et ux. v. DOE RUN LEAD CO.
• Court: Missouri Court of Appeals

34 S.W.2d 1002

KEMP et ux. v. DOE RUN LEAD CO.

No. 21349.

St. Louis Court of Appeals. Missouri.

February 3, 1931.

Appeal from Circuit Court, St. Francois County; B. H. Boyer, Judge.

"Not to be officially published."

Action by Sam Kemp and wife against the Doe Run Lead Company. After judgment for plaintiffs, defendant's motion for a new trial was granted, and plaintiffs appeal.

Affirmed and remanded.

Raymond S. Roberts, of Farmington, and John Grossman, of St. Louis, for appellants.

P. S. Terry, of Festus, and Parkhurst Sleeth, of Bonne Terre, for respondent.

NIPPER, J.

This is an action for damages brought by plaintiffs against the Doe Run Lead Company, as defendant. Plaintiffs seek to recover damages as the result of the death of their son, Truman, who was drowned in a pond or lake maintained by the defendant near one of its lead mines or mills in St. Francois county, Mo.

Plaintiffs recovered judgment. The lower court sustained defendant's motion for a new trial, on the ground that a peremptory instruction should have been given to find for the defendant. From this action, plaintiffs have appealed.

The evidence discloses that the boy was a little less than three years of age, and lived with his parents and other members of the family about a quarter of a mile away from this pond. On the 11th of May, 1928, this child, in company with another small boy, left plaintiffs' home and went to this pond, and, while playing near the edge of the water, slipped or fell into the same, and was drowned. The pond or body of water was about half a mile long and a quarter of a mile wide. There was a neighborhood road or path leading from the point where plaintiffs lived to this pond. The pond was located upon the private property of the defendant, and was not immediately adjacent to any public highway or street, but, it appears from the evidence, was about a quarter of a mile from any inhabited section or territory. The pond is surrounded on the west and south sides by a pile of chat, which is finely ground rock, and has the appearance somewhat of sand. On the east side, the chat starts at the northeast corner with a height of 4 or 5 feet, and gradually increases its height to the southward, attaining a height of approximately 200 feet. On the north side there is a hill providing a natural embankment to hold the water in this lake or pond. There was no fence around the body of water, and no watchman was kept there for the purpose of keeping children away.

The evidence discloses that it was a place much frequented by children who would come there to play near the water, and in the summer sometimes would go swimming in this place. When the boy was found, he was 6 or 7 feet from the edge of the pond, and in water from 3 to 4 feet deep. The business conducted by the defendant was mining of lead ore. The lead ore would be brought to this mill located south and west of the chat dump. Water would accumulate from the treatment of the ore, and was run into the pond by means of a pipe. This water as it came from the mill was mixed with crushed rock and earth, and was therefore muddy. The muddy water was left in the pond to settle.

The petition seeks to recover on the ground that defendant maintained this pond of water and permitted plaintiffs' son and numerous other children of tender years residing in the neighborhood to play about, around, visit, and frequent this pond, with no guard, barrier, or fence around it to protect said children, or to prevent them from playing there, that said pond and chat pile had become attractive to children of tender years, and that defendant knew that said children were attracted to said pond, and that the same was dangerous and not reasonably safe.

The answer was a general denial, coupled with a plea of contributory negligence.

At the beginning of the trial, it was admitted that the slime pond and the chat dump belonged to the defendant, and that the uncultivated and unoccupied lands extended for about a quarter of a mile in each direction, and that the reason for building the pond and chat dump around it, and maintaining the body of water there, was for the purpose of obeying an injunction wherein the defendant was restrained from permitting any slime, chat, or other similar material from getting into the water courses of this state.

As heretofore...