Patterson v. Gibson

• Decision Date: 12 March 1956
• Docket Number: No. 44863,No. 2,44863,2
• Citation: 287 S.W.2d 853
• Parties: Gerald L. PATTERSON, Jr., an Infant, by his Next Friend, Gerald L. Patterson, Sr., Appellant, v. Roy Lee GIBSON, d/b/a Gibson Construction Co., Respondent
• Court: Missouri Supreme Court

Page 853

287 S.W.2d 853

Gerald L. PATTERSON, Jr., an Infant, by his Next Friend Gerald L. Patterson, Sr., Appellant, v. Roy Lee GIBSON, d/b/a Gibson Construction Co., Respondent.

No. 44863.

Supreme Court of Missouri, Division No. 2.

March 12, 1956.

Gragg & Aubuchon, William R. Schneider, St. Louis, for plaintiff-appellant.

Evans & Dixon, John F. Evans, St. Louis, for respondent.

EAGER, Presiding Judge.

This is a suit by a minor for personal injuries. The amount sought in the petition was $20,000 and, concededly, the plaintiff suffered serious injury. The trial court directed a verdict for the defendant, and subsequently overruled plaintiff's motion for a new trial.

The child in question, then a boy four and a half or five years of age, lived with his parents in a second-floor apartment or flat in the City of St. Louis, directly across an alley from a corner lot on which a church building was being constructed at the time of the injury. The excavation had been made, the concrete foundation poured and completed, and the joists and rough flooring had been laid for the first or ground floor. In making the excavation, the earth was dug out for a distance of 3-4 feet outside the completed foundation wall, in order to facilitate the removal of the forms for the concrete, the weatherproofing of the foundation, and the laying of drains and plumbing; this additional excavation was described at the trial as an 'over-dig.' The result was that there was a trench substantially all around the foundation, three feet or more wide and estimated to be 10 to 12 feet deep. There were at least two sand piles on the lot, one of which was near the northwest corner (plaintiff lived just west of the lot). Apparently, the usual bits and pieces of lumber, wood, and building materials were scattered about the place, including some pieces in the trench and some on the rough flooring already constructed. The neighborhood children had played on and about the construction and the lot since the work started; there was testimony that at times they played there during working hours and that the workmen had not disturbed or warned them; also, that there were no warning or 'no trespassing' signs, until such were put up shortly after the injury. There was evidence also that substantially all phases of the construction and materials were visible from the adjoining streets and alley, as well as from plaintiff's home.

Dirt from the 'over-dig' remained scattered around the edges of the trench, but this level was lower than that of the rough flooring. At the time of the injury two boards were lying across this trench at the northwest corner; they have been variously, and somewhat hazily, described both as to dimensions and position. However, as best we can ascertain, they were probably one inch thick, ten or twelve inches wide and perhaps ten feet long. One was on top of the other but 'overlapping'; how much it 'overlapped' no one said. These boards were used for a 'bridge' for wheelbarrows from the ground to the structure; there was evidence that they had been there four or five days or more, or about a week; a neighbor woman testified that she had removed them 'maybe two weeks' before the injury (with little or no explanation), but, if so, they were evidently replaced shortly. Witnesses displayed the 'overlapping' at the trial with pieces of cardboard, which is of little help here. There was some testimony that the boards had been 'overlapping' for about a week, or for four or five days prior to the injury; and the neighbor woman said that when she saw them one-half to three-quarters of an hour after the injury they were overlapping, and in the same position as when she removed them.

On April 7, 1954, in this situation and surroundings, the child had been playing in the sand pile near the northwest corner of the lot, which incidentally was furthest away from the street intersection. This was about 5:45 P.M. and the weather was clear. For some reason, and on his own initiative, he left the sand pile and walked on to this board bridge leading to the flooring. Two older boys watching him (one twelve and one fifteen) testified that as he neared the flooring the uppor board 'tipped over' or 'tipped to the side,' and he fell and the board (as he fell) came back into its original position. All of the construction work in question and the materials and supplies around it were on private property. The evidence indicates no undue delay in the construction work; in fact, the fall and injury, according to one witness, occurred three or four days after the foundation forms had been removed.

No point is made concerning the pleadings, so we shall not discuss them. Defendant does make the point that the evidence wholly failed to show that he owned or controlled the premises in question or was responsible for the conditions shown. There is some substance in this point, but since the omission appears to have been an inadvertence we might be inclined to remand the case if such were the ground of reversal. Under these circumstances, we proceed to consider the liability on the merits.

Plaintiff makes two points: (a) that defendant knowingly maintained an 'enticing and an inherently dangerous trap for small children'; and, (b) that defendant knowingly maintained 'an attractive nuisance of an enticing and inherently dangerous and trap-like nature.' We shall consider these in reverse order. The doctrine of attractive nuisance has long been recognized in Missouri, but its application has been rather strictly limited. These cases often promote a conflict between 'sentimental considerations' and the 'cold and calm reason * * * for rules of law'. Judge Lamm in Kelly v. Benas, 217 Mo. 1, 116 S.W. 557, 560, 20 L.R.A.,N.S., 903. Of the cases plaintiff cites on this point those most nearly applicable are: Hull v. Gillioz, 344 Mo. 1227, 130 S.W.2d 623; Lentz v. Schuerman Bldg. & Realty Co., Banc, 359 Mo. 103, 220 S.W.2d 58; Holifield v. Wigdor, 361 Mo. 636, 235 S.W.2d 564; and Morrison v. Phelps Stone Co., 203 Mo.App. 142, 219 S.W. 393. The cases of Zuber v. Clarkson Const. Co., 363 Mo. 352, 251 S.W.2d 52; Wells v. Henry W. Kuhs Realty Co., Mo., 269 S.W.2d 761, and Kemp v. Doe Run Lead Co., Mo.App., 57 S.W.2d 758, are also cited, although they are not strictly attractive nuisance cases.

The case of Hull v. Gillioz, supra, contains a rather exhaustive discussion of the doctrine as applied in Missouri. There sundry steel 'I' beams, each approximately 43 feet long and weighing more than 3,000 pounds, had been piled in a construction storage lot, which was unfenced, and with one end of the pile about seven feet from the public sidewalk. There was no watchman and many neighborhood children had habitually played in the lot, on the pile of beams, and on other materials piled there. A number of these beams had been removed from the center of the pile, and one was left in such an insecure position on the pile that children could and did rock it back and forth, making loud clanging noises. This had gone on for a comparatively long period and there was some evidence that an employee of defendant had been told of the condition. While plaintiff and three other children were thus engaged in rocking the beam, it fell, seriously injuring him. The court reviewed the history of the doctrine, in Missouri and elsewhere, and noted that its application in Missouri is rather limited; various instances are recited where its application has been denied. The court there held that the doctrine is applicable where (a) children's trespasses are due to the attractions of a dangerous instrumentality or condition, and (b) where, (and only where) the instrumentalities and conditions are inherently dangerous, and not such as are created by mere casual negligence. The Missouri doctrine was there described as a middle ground, lying between the strict application of the early turntable cases and the liberal expressions of the Restatement of Torts, Sec. 339 (which has not been followed). The court further said at 130 S.W.2d loc. cit. 628: '* * * Inherently dangerous means that danger inheres in the instrumentality or condition itself, at all times, so as to require special precautions to be taken with regard to it to prevent injury; instead of danger arising from mere casual or collateral negligence of others with respect to it under particular circumstances. * * *' It was held that the conditions there met these requirements; the decision was based largely on the fact that the children could, by their own efforts,...