Lucas v. Hammond, 27014

• Court: Mississippi Supreme Court
• Writing for the Court: SMITH, C. J.
• Citation: 150 Miss. 369,116 So. 536
• Parties: LUCAS v. HAMMOND. [*]
• Decision Date: 09 April 1928
• Docket Number: 27014

116 So. 536

150 Miss. 369

LUCAS
v.
HAMMOND. ^[*]

No. 27014

Supreme Court of Mississippi

April 9, 1928

Division A

1. NEGLIGENCE. One maintaining dangerous instrumentality easily accessible to children is liable to child non sui juris injured thereby without knowledge or appreciation of danger.

One who maintains dangerous instrumentalities or appliances on his premises easily accessible to children, and of a character likely to attract them in play, or permits dangerous conditions to remain thereon with knowledge that children are in habit of resorting thereto for amusement, without exercising ordinary care to prevent children from playing therewith or resorting thereto, is liable to child non sui juris, who was injured thereby, and who did not know and appreciate danger.

2. NEGLIGENCE. Landowner has right to maintain dangerous instrumentality attractive to children when exercising ordinary care to prevent injury.

A landowner has a right to maintain a dangerous instrumentality on his premises that is attractive to children, provided he exercises ordinary care to prevent them from being injured while playing therewith.

3. NEGLIGENCE. Recovery could not be had on theory of attractive nuisance for injury to trespassing five year old boy, resulting after warning to stay away from place.

Where trespassing five year old boy, who was injured by revolving shaft in conveyor from cotton gin to seedhouse, after having been warned by owner's employee to stay away, recovery could not be had for injury on theory of attractive nuisance, since owner's only duty was to exercise ordinary care to prevent him from obtaining access to, and being injured by, conveyor. [150 Miss. 370]

HON. JOHN F. ALLEN, Judge.

APPEAL from circuit court of Attala county, HON. JOHN F. ALLEN, Judge.

Action by W. A. Lucas, a minor, by next friend, against J. L. Hammond. Judgment for defendant, and plaintiff appeals. Affirmed.

Affirmed.

C. E. Morgan and J. D. Guyton, for appellant.

The whole case is predicated on the "attractive nuisance doctrine." Some of the states refuse to recognize this doctrine; and therefore the decisions in such states are not helpful to us--for in Mississippi this doctrine has been many times sustained and upheld as sound. "A peremptory instruction will be error unless the evidence, conceding it to be absolutely true, discloses no legal right in the party against whom the instruction is given." Fore v. Alabama R. R. Co., 87 Miss. 211, 39 So. 493, 690. "It is only in cases free from doubt that the court will withdraw a case from the jury." R. R. Co. v. Doyle, 60 Miss. 977. "The defendant is not entitled to a peremptory instruction when the evidence adduced, with the legitimate conclusions drawn therefrom would uphold a verdict for the plaintiff." State v. Spengler, 74 Miss. 129, 21 So. 4.

The attractive nuisance doctrine might here be stated in the language of the courts and law writers: Quoting 1 Thompson on Negligence, sec. 1024: "One who artificially brings or creates upon his own premises any dangerous thing which from its nature has a tendency to attract the childish instinct of children to play with it, is bound, as a matter of social duty, to take such reasonable precautions as the circumstances admit of, to the end that they be protected from injury while playing with it, or coming in its vicinity." Criticising the states which refuse to uphold this doctrine, Judge THOMPSON, sec. 1030, says: "This cruel and wicked doctrine, unworthy of a civilized jurisprudence, puts property above humanity, [150 Miss. 371] leaves entirely out of view the tender years and infirmity of understanding of the child, indeed his inability to be a trespasser in sound legal theory and visits upon him the consequences of his trespass just as though he were an adult." Lynch v. Nurdin, 1 Q. B. 29, decided in 1841, is generally regarded as the origin of this doctrine; but its origin in this country seems to date from 1873 when the supreme court decided the case of Stout v. Sioux City & U. R. Co., 17 Wall. 657, 21 L.Ed. 745. Mr. Justice HUNT, in writing the opinion of the court in this case, after declaring that the fact that the turntable was a dangerous machine likely to cause injury to children who resorted to it to play might be inferred from the fact of the injury, and that the jury was justified in believing, upon evidence, that children had been at play upon the turntable on other occasions, that they would probably resort to it, and that the defendant should have anticipated that such would be the case, said that this could certainly have been prevented by locking the turntable, which could have been done at an inconsiderable expense. In City of Perkins v. McMahon, 154 Ill. 141, 39 N.E. 484, the city owned several lots partially inclosed where it dug sand and gravel. Rains had made a pond out of these holes, and in this pond floated logs and chunks. A child of tender years was playing there riding on the logs and on the log turning with him he fell off and was drowned. On being sued for damages, the city pleaded the general issue, inclosed lots, child a trespasser, and accident. The court in that case said: "The general rule is that owner of land is under no obligation to strangers to keep premises in safe condition. But this is an exception to the rule which is as firmly established as the rule itself."

In Dublin Cotton Oil Co. v. Jarrard, 40 S.W. 531, the Texas court of appeals (affirmed by supreme court in 42 S.W. 959, 91 Texas 289) a school girl who had been warned by the teacher not to go in the oil mill, went into [150 Miss. 372] the mill with a companion, was seen there by workmen in a room where the machinery was not running, and a few minutes later she went into another room where the machinery was running, and was there jumping over a trough on the floor in which was a revolving shaft, a screw conveyor just like the one in the case at bar, which carried the cotton seed on to the crushers, the top of which was open, and in some way while thus playing she fell into this trough and mangled one of her feet. In Keffe v. Milwaukee R. R. Co., 21 Minn. 207, one of the early cases in which the turntable doctrine announced in the Stout case was taken up and elucidated, the injured child was not considered a voluntary trespasser, the court saying that the turntable, being attractive, presented to the natural instinct of young children a strong temptation. In Chicago & E. R. Co. v. Fox, 38 Ind.App. 268, 70 N.E. 81, a six and one-half-year-old child was injured while playing on an unfastened turntable. The reasons for imposing liability in the turntable cases might be summed up as follows:

1. That the turntable is easily accessible to children. 2. That it is peculiarly attractive to children, and calculated to entice them. 3. That, when set in motion, it is a source of latent danger. 4. That it was left unguarded and unfastened, although at slight expense it could have been guarded and fastened. 5. That the company knew, or ought to have known that children did or would resort there to play, and ought to have anticipated they would in such event be injured. Attractive nuisance doctrine has often been applied to dangerous machinery in places where children were accustomed to play. In Whirley v. Whitman, 1 Mead. 610, the owner of unprotected cog-wheels revolving, located in an open space, twenty feet from a street, is liable for an injury to a three-year-old-child. In McAlister v. Seattle B. & M. Co., 44 Wash. 179, 87 P. 68, it was held that the question whether a sheave or pulley wheel placed [150 Miss. 373] in the center of a car track, and used in connection with a wire cable for moving cars for the use of a brewery, belonged to that class of dangerous machinery. In Nashville Lumber Co. v. Busbee, 100 Ark. 76, 38 L. R. A. (N. S.) 754, a chain run by a sprocket wheel to carry refuse from a box factory unguarded and exposed. Francecetti v. Spring Valley Coal Co., 205 Ill.App. 577, an overhead trolley along which cars were carried by means of a revolving rope, pulleys and sprocket wheels, as a means to carry off waste. Berg v. B. B. Fuel Co., 122 Minn. 323, a conveyor running in a trough in the bottom of which was an endless chain which carried bark and refuse away. Union P. R. Co. v. McDonald, 152 U.S. 262, a slack pit near the common passway that led to a mine. Strollery v. Cicero St. R. Co., 243 Ill. 290, affirming 148 Ill.App. 499, a coal conveyor consisting of an endless chain running in a trough and over sprocket wheels, used to bring coal from coal bin to boiler.

In Mississippi the attractive nuisance doctrine is adopted as above outlined. It is applicable to turntables and other places and machinery as well. See Mackey v. Vicksburg, 64 Miss. 777, 2 So. 178, a path leading up a steep hill at rear of plaintiff's home where excavations had been made. Spengler v. Williams, 67 Miss. 1, 6 So. 613, piled lumber in a street where children were wont to play. Temple v. McComb City, 89 Miss. 1, 42 So. 874, an electric wire through an oak tree in the street with limbs near the ground. City of Vicksburg v. McLain, 67 Miss. 4, 6 So. 774, excavated a street near a public school. Dampf v. Y. & M. V. R. Co., 95 Miss. 85, 48 So. 612 a turntable case.

The foregoing authorities establish pretty clearly that the attractive nuisance doctrine is based on implied invitation and on childish instinct and curiosity and inability to judge his danger. The facts of this case make it fall squarely in line with the above authorities, and every requirement is met by the evidence. Whether or [150 Miss. 374] not the defendant in this case was guilty of any negligence that proximately contributed to this child's terrible hurt and injury, was a question for the jury to determine. Under our comparative negligence statute, all questions of negligence and contributory negligence are for the jury. Under another...