McCulley v. Cherokee Amusement Co.

• Decision Date: 02 December 1944
• Citation: 184 S.W.2d 170
• Parties: McCULLEY v. CHEROKEE AMUSEMENT CO.
• Court: Tennessee Supreme Court

Page 170

184 S.W.2d 170

McCULLEY v. CHEROKEE AMUSEMENT CO.

Supreme Court of Tennessee.

December 2, 1944.

Error to Circuit Court, Campbell County; Wm. I. Davis, Jr., Judge.

Personal injury action by Frank Samuel McCulley, by next friend, against Cherokee Amusement Company. A judgment for defendant was reversed by the Court of Appeals, and the defendant brings certiorari.

Judgment of Court of Appeals reversed and judgment of trial court affirmed.

Harry B. Brown and Templeton & Templeton, all of Jellico, and Joe M. Carden, of LaFollette, for plaintiff.

W. W. Piper and Cates, Smith & Long, all of Knoxville, for defendant.

NEIL, Justice.

The plaintiff, by his next friend, brought suit in the Circuit Court of Campbell County against the defendant for damages for personal injuries received while attempting to enter defendant's motion picture show through a hole in the wall of a small furnace room adjoining the main building. The declaration describes the hole in the wall of the furnace room as an opening "through which fresh air was forced from the outside into the inside of said theater building by the operation of an electric fan." The electric fan was a "large, heavy, mechanical device, apparently enclosed in a covering of sheet metal which extended over the top and both ends and partially around the sides." It was through this opening and in close proximity to the fan that young McCulley attempted to enter when he was injured, one trouser leg being caught in the blades of said electric fan, causing serious injury to his leg.

It is further alleged in the declaration that little boys, "actuated by strong desire to see the moving pictures, and having an opportunity to enter the opening in the rear wall, they constantly took advantage of it, with the knowledge of the defendant;" that the said defendant failed to close said opening to prevent any injury to young boys and especially the plaintiff. The plaintiff's right of action is based upon the theory that the defendant maintained an attractive nuisance, one which especially appealed to children, and that defendant failed and neglected to so guard this particular entrance to the theater, "the hole in the wall," and thus prevent any injury. It is thus stated in the following paragraph of the declaration:

"Plaintiff avers that under said circumstances and conditions it was the defendant's duty to prevent injuries to such little boys by said electric fan and by said dangerous conditions, and that, having converted its premises into an attractive show place, and having set up on the rear of said premises a dangerous agency, and having attracted little boys to its premises by the nature of its business and by special invitation, with actual knowledge of their disposition and habit of slipping into the show by entrance at the rear, as aforesaid, and having thus exposed them to said dangers, it was the defendant's duty to anticipate that injury was likely to result to such little boys and to exercise reasonable care to prevent it, which plaintiff avers the defendant wholly and grossly, wilfully and wantonly, failed and neglected to do."

At the conclusion of all the evidence the trial judge sustained a motion for peremptory instructions upon the grounds (1) that the attractive nuisance doctrine does not apply to the facts in the case, and (2) that plaintiff, though a minor, was guilty of proximate contributory negligence which barred his right to recovery. An appeal was prayed and granted to the Court of Appeals and the action of the trial court in dismissing plaintiff's case was assigned as error. That Court in a divided opinion reversed the lower court and remanded the case. We granted certiorari and the case has been regularly heard.

Before considering the assignments of error it is important to note certain undisputed facts. It appears that for a long time prior to the plaintiff's injury the manager of the defendant's theater had warned a large number of boys against gaining entrance to the building by using the hole in the furnace room; that when they thus entered they were ejected and not allowed to remain. The plaintiff had not prior to his injury gained entrance through this opening, but had full knowledge of the fact that other boys had been told that it was dangerous. He testified that he had heard the manager tell other boys it was dangerous to go through the furnace room. As to the danger of being injured by the blades of the fan, he testified:

"Q. It was plain to see you might get hurt? A. I didn't know I would get hurt with the fan; I thought the fan belt might hurt me.

"Q. You knew you might get hurt by the blades of the fan? A. No, for I had not been in there."

It further appears from his testimony that other boys had told him it was easy to get in through the furnace room. Jimmie McCulley, the brother of the plaintiff, and who was sixteen years of age, gave the following testimony:

"Q. Did Mr. Sutton tell you why he wanted you to not come in that way? A. He told me it was dangerous and a trap for little boys. He said, "Stay out; you might get injured."

The assignments of error relate to the error of the trial court in directing a verdict upon the grounds heretofore mentioned, the Court of Appeals disagreeing and remanding the case. The questions are thus pointedly made on the record: (1) Does the attractive nuisance doctrine apply to the facts of the instant case, and (2) does the proximate contributory negligence of a minor ten years of age bar his right of action? The majority view of the Court of Appeals is that the instrumentality which caused the plaintiff's injury, while not in and of itself an attractive nuisance, was nevertheless so closely related to and connected with the picture show, which is admittedly attractive to everyone, that it must be considered a part of it. The doctrine of attractive...