McGaughey v. Haines

• Decision Date: 07 March 1962
• Docket Number: No. 42567,42567
• Parties: James M. McGAUGHEY, a Minor, by and through his next friend, James Lester McGaughey, Appellee, v. Dennis HAINES and A. K. Schmidt, Appellants.
• Court: Kansas Supreme Court

Page 120

370 P.2d 120

189 Kan. 453

James M. McGAUGHEY, a Minor, by and through his next friend, James Lester McGaughey, Appellee, v. Dennis HAINES and A. K. Schmidt, Appellants.

No. 42567.

Supreme Court of Kansas.

March 7, 1962.

Rehearing Denied May 22, 1962.

Syllabus by the Court

The record examined in a damage action, based on the doctrine of attractive nuisance, for personal injuries received by a four year old child by reason of his falling from a tractor with tendem disk attached, which had been left standing in a neighboring farmer's maize field by his farm employee at the end of a day's work, as more fully narrated in the opinion, and it is held, the trial court erred in overruling defendants' motion for a directed verdict.

D. C. Martindell and Robert C. Martindell, Hutchinson, argued the cause, and W. D. P. Carey, J. Richards Hunter, Harry Dunn, Edwin B. Brabets, William B. Swearer, and Elwin Cabbage, Hutchinson, on the briefs for appellants.

Russell Shultz, Wichita, argued the cause, and Walter A. Sawhill and Kenneth C. Kimmell, Wichita, on the briefs for appellee.

Richard D. Rogers and John F. Stites, Manhattan, on the briefs amicus curiae for the Kansas Farm Bureau, and Warden L. Noe, Holton, on the briefs amicus curiae for Kansas Livestock Assn.

ROBB, Justice.

This is an appeal from a verdict and judgment in favor of plaintiff, a minor, in an action for personal injuries brought by his father and next friend, from the orders overruling defendant's motion for a directed verdict at the close of the evidence and for a new trial, together with other orders that do not need immediate mention.

Plaintiff's amended petition, in brief, alleged that on July 4, 1957, he resided with his parents southwest of Haven, Kansas, where they rented a farm dwelling. Immediately adjoining this home property on the east was a farm owned by Daisy Haines and operated by her and Dennis Haines. A. K. Schmidt was the agent, servant and employee of Daisy and Dennis Haines. Prior to July 4, 1957, Schmidt, in working as such farm employee of Daisy and Dennis, was using a 1955 model Massey-Harris tractor drawing a tandem disk. The tractor was started by use of an ignition key and a starter. It and the disk were new, bright red in color, and were attractive to children of tender years and particularly to this plaintiff, who was not a farm boy and was unfamiliar with such machinery. It was unknown to plaintiff whether this was normal farm machinery. Children in the area, including plaintiff, were in the habit of playing along the east side of their home area and along the west side of defendants' farm within fifty feet of the fence line, and this was well known to defendants. Plaintiff had been seen so playing in the area by A. K. Schmidt. On July 3, 1957, at 7:00 p. m. Schmidt had carelessly and negligently left this tractor and tandem disk in gear and with the ignition key therein standing within approximately 100 yards of plaintiff's dwelling house and about twelve feet east of the fence line dividing the two tracts of land with full knowledge of the danger incident thereto.

On July 4, 1957, at 4:00 p. m. plaintiff (then four years of age) and his stepbrother, Kenneth Snyder (then eleven years of age), crossed the fence onto the land of defendants and played upon the tractor and disk. Kenneth played with the ignition key and the starter of the tractor and caused the tractor to start and plaintiff in some way fell so that the disk ran and passed over his body.

Plaintiff was of too tender an age to appreciate the danger and risk of playing and riding on a tractor. His injuries were caused by defendants and their employee carelessly and negligently leaving, in the close vicinity of plaintiff's home, the tractor and disk, which were attractive and in such condition they could be started and moved by children. Thus the plaintiff's theory and cause of action was based upon the proposition that the tractor with the tandem disk thereto attached, under the surrounding facts and circumstances, constituted an attractive nuisance. Prior to trial the court below ruled plaintiff could introduce evidence that the key was in the ignition of the tractor, to which the disk was attached, and that the location of the machinery constituted an attractive nuisance but the evidence could not be introduced for any other purpose. The trial court's ruling, the petition, and, of course, the record on appeal were all predicated upon the basis of attractive nuisance. It was also predetermined by the trial court that plaintiff could introduce evidence of the location of the farm machinery on July 3, 1957.

The record discloses further that the land of Daisy and Dennis Haines consisted of 110 acres of farm land about three miles west and one mile south of the rural community of Haven in Reno county, Kansas. The west fifty acres of the quarter section was owned by Forrest Smith and at the south end of Smith's property there was a basement dwelling and small garden plot which he leased to plaintiff's father in the fall of 1955. Just east of the basement home and on the Smith's property was a ravine with the customary undergrowth found along brooks and streams that are dry part of the year. This ravine became deeper as it went north. Just beyond the ravine to the east on the dividing line between the Smith property and the land of Daisy and Dennis there was a thick hedge fence which had breaks in the hedge so that people and objects on one side thereof could be seen from the other side. Cane, wheat, and maize (also called milo) were the principal crops planted and growing on both properties at the time in question. Measuring north and south, the south forty rods of the land belonging to Daisy and Dennis was planted in wheat. In the next forty rods of land to the north, the field of operations involved herein, Schmidt, on July 3, 1957, and at the direction of Dennis, had been reseeding the maize crop in that field. After he had double disked the ground, he left the tractor and attached disk at a spot approximately 150 feet south and fifty feet east of the northwest corner of this maize field, but about 10:00 a. m. on July 4, 1957, while drilling the maize crop with a smaller tractor, Schmidt had to move the tractor and disk. At about 5:00 or 5:30 p. m. on that same day Schmidt returned the smaller tractor and drill to the residence of Daisy and Dennis, which was about two miles distant from the field, and then he returned to get his pick-up truck. During the day on July 4, 1957, Schmidt had noticed two men and two boys (one of the men was plaintiff's father and the boys were plaintiff and his stepbrother Kenneth) riding on a combine which was being used to cut the wheat on the Smith land to the north and west of the basement dwelling. As they often did, Kenneth and plaintiff took Kenneth's BB gun and went hunting along the ravine on the Smith property and while there seems to be a conflict in the evidence as to whether Kenneth had previously seen the tractor and disk on July 3, 1957, or if he saw it first on July 4, 1957, just as they were opposite the opening in the hedge at the northwest corner of the newly-drilled maize...