Kinchlow v. The Midland Elevator Company

Decision Date07 November 1896
Docket Number8951
Citation46 P. 703,57 Kan. 374
PartiesASA E. KINCHLOW, a Minor, by John Kinchlow his Father and Next Friend, v. THE MIDLAND ELEVATOR COMPANY
CourtKansas Supreme Court

Decided July, 1896.

Error from Wyandotte Court of Common Pleas Hon. T. P. Anderson Judge.

REVERSED AND REMANDED.

Judgment reversed.

Dail & Bird, for plaintiff in error.

Morse & Morse, and Meservey, Pierce & German, for defendant in error.

MARTIN C. J. All the Justices concurring.

OPINION

MARTIN, C. J.

On January 5, 1892, the plaintiff, a boy 10 years of age, was scalded and badly injured by falling into a barrel partly full of hot water formed by the exhaust steam from the engine used as a motive power for the defendant's elevator at Kansas City, Kansas. On January 18, 1892, he commenced his action to recover damages in the sum of $ 15,000 on account of said injury. The defenses were a general denial and a plea of contributory negligence, which latter was put in issue by the reply of the plaintiff. The case was called for trial on June 14, 1892, and the plaintiff introduced his evidence, to which the defendant demurred, and the demurrer was sustained and the jury discharged. The plaintiff's motion for a new trial was overruled October 15, 1892. Exceptions were duly taken to the rulings of the Court, and the case is now here for review.

The evidence tended to show the following facts: The Elevator Company occupies a strip of ground about a quarter of a mile in length east and west, and about 60 feet in width north and south. There are railroad tracks on each side of the elevator, and the engine house and the office are separate buildings varying in distance from about 35 to 75 feet from the east end of the elevator. A boxed-in shaft about three feet from the ground transmits the power from the engine to the elevator, crossing the vacant space between the buildings. The exhaust-steam barrel was sunk in the ground so that its top was level with the surface and close to the elevator. The pipe led into the barrel just beneath the top, and the only covering of this barrel was either the original heading or something of the same shape and character, which lay loose on top. On each corner of the elevator building a sign was nailed about 14 feet from the ground with the words "DANGER, KEEP AWAY!" There was no guard or railing about the barrel, and no special warning of danger in reference to it. There was more or less passing of employees and others from the elevator to the engine house and the office, and some persons crossed the ground north and south, stooping to go under the boxed-in power shaft. There was no well-defined path north and south, but there was no obstruction in that respect except the shaft and its boxing. The neighborhood of the elevator was dangerous on account of the frequent movement of cars on either side. The plaintiff had been making his home for a week or two with John McQuillan, who, for a consideration paid by him to the Elevator Company, had the privilege of sweeping out the grain cars after they had been unloaded and obtaining the grain procured from the sweepings. The work was done mostly by two or three boys employed by McQuillan, including the plaintiff who worked for his board. The sweeping was done mostly east of the elevator on both sides and opposite the vacant space between it and the engine house and the office. The plaintiff and the other boys were forbidden by McQuillan from going into the office and the engine house, but were not warned about the exhaust-steam barrel, and the plaintiff never noticed it until the day of his injury. He and Walter Freeman, another boy, had been sweeping cars all day, and McQuillan had gone to his house for a lantern because it was necessary to continue work after dark. They got through with a car on the north side and were next to work on the south side, and McQuillan told them to remain until he came back. The day was cold, and shortly after he left, a little girl about eight years old told the plaintiff that the barrel was a good place to warm his feet. He noticed a little steam coming out of the top of the barrel, and he and Walter Freeman went toward it--the little girl going away. The plaintiff stepped upon the cover, which tipped up and he fell into the barrel with both feet. Walter Freeman helped him out and they went to McQuillan's house. The plaintiff was so badly scalded that the skin nearly all came off both legs from the knees to the ankles, as also some of the flesh. He was afterward taken to a hospital where the process of skin grafting was commenced; but at the time of the trial only partial progress had been made and he was unable to stand on his feet, and he will always be at least partially disabled.

If in the foregoing there was any evidence from which a jury would have a right to infer negligence of the defendant toward the plaintiff in maintaining the steam-exhaust barrel in that particular place and condition, then the case ought to have been submitted to the jury, unless contributory negligence of the plaintiff was also conclusively shown thereby. U. P Rly. Co. v. Rollins, 5 Kan. 167, 181; Caulkins v. Mathews, 5 id. 191; St. L. & S. F. Rly. Co. v. Richardson, 47 id. 517, 519. The maxim sic utere tuo ut alienum non laedas has been applied in a great variety of cases, and persons and corporations have often been held liable for the use or exposure of their own property in such manner as to produce injury to the person or property of another. The exposure of dangerous implements or machinery unguarded and in such a position as to be attractive to trespassing children has frequently been the sole ground of liability for injuries to them. To this class belong the...

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