Ramage Mining Co. v. Thomas

• Decision Date: 23 April 1935
• Docket Number: Case Number: 24251
• Citation: 44 P.2d 19,1935 OK 470,172 Okla. 24
• Parties: RAMAGE MINING Co. v. THOMAS.
• Court: Oklahoma Supreme Court

1935 OK 470

44 P.2d 19

172 Okla. 24

RAMAGE MINING Co. v. THOMAS.

Case Number: 24251

Supreme Court of Oklahoma

Decided: April 23, 1935

Syllabus

¶0 1 NEGLIGENCE--Duty Owed by Owner of Premised To TresPassers and Licensees-- Care Required where Premises Dangerous.

The only duty the owner of premises owes a trespasser is not to willfully or wantonly injure him; ordinarily no duty or anticipating his presence is imposed. In the case of a licensee the landowner must not wantonly and willfully injure him, and if the premises are inherently dangerous or if there is a dangerous instrumentality thereon, such as highly dangerous explosives, exposed electric wires and the like, it is usually willful or wanton negligence not to exercise ordinary care to prevent injury to a person who is actually known to be, or reasonably is expected to be, within the range of such danger.

2. SAME--Rule of Attractive Nuisance.

The rule of attractive nuisance arises in a case where the premises are sufficiently attractive to allure children to the danger, and where the situation is such as to suggest to the landowner the probability of such allurement and an accident arising therefrom.

3. SAME--Rule Applicable Even Where Child Is Trespasser.

The doctrine may be invoked in a case where the child injured by reason of an attractive nuisance is an invitee, a licensee, or trespasser; a child under seven years of age, or in the absence of evidence of capacity, between seven and 14 years of age, being presumed to be incapable of guilt of more than technical trespass.

4. SAME--Consideration in Determining Whether Landowner Was Guilty of Reckless Disregard for Safety of Trespassers Amounting to Wantonness.

A mere omission, although superficially characterized by mere thoughtlessness or heedlessness, but, in its deeper explanation, involving a reckless disregard for the safety of merely technical and reasonably anticipated trespassers, such as children of tender years, especially if unconscious trespassers, in respect to obviously and seriously dangerous artificial condition of premises, may amount to wantonness in landowner; but the attractiveness and accessibility of the place or thing involving such danger and the probability of such trespassers, the gravity of the danger in such condition, the length of time such condition has existed, the smallness of cost and of deprivation of beneficial use involved in eliminating same, and the reasonableness of the inference that the landowner, as a person of ordinary sensibilities and prudence, knew or should have known of, and under all the facts and circumstances in the case should have eliminated such danger, are proper considerations in determining whether there was. such reckless disregard for the safety of such trespassers. This is also true in the case of a licensee, such as a child of tender years, there being no higher duty to a trespasser than to a licensee.

Appeal from District Court, Ottawa County; Dennis H. Wilson, Judge.

Action by Herbert Thomas a minor, by Ray Thomas, his next friend, against the Ramage Mining Company to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed.

Cuddie E. Davidson and A. W. Thurman, for plaintiff in error.

Nelle M. Nesbitt, Frank Nesbitt, P. D. Decker and Edward Scott, for defendant in error.

PER CURIAM.

¶1 Herbert Thomas, a minor, by Ray Thomas, his next friend. was plaintiff in the court below, and the Ramage Mining Company, a corporation, was defendant below, and they will be so referred to here.

¶2 Plaintiff, Herbert Thomas, was injured July 23, 1931, at which time he was eleven years of age, in a dummy elevator, a building approximately 35 or 40 feet high, located on the premises of the defendant at the west edge of the town of Century or Douthat, Okla. Inside the elevator and at the top thereof was a pulley, and at the bottom was another pulley. Around these two pulleys from top to bottom was an elevator belt, to which belt cups were fastened so that the elevator belt turned around with the pulley. There was an opening at the top and another opening at the bottom. The elevator was used to carry or lift chat and z rocks from the mine and conduct the same on a flume to a dump pile away from the mine shaft.

¶3 At the time of the accident the mine had not been in operation for several months. Children had been in the habit of playing on the dump piles and around and in the dummy elevator. The evidence of the defendant is that children had been driven off of the premises time after time and whenever observed thereon, but there is no evidence that the child plain, tiff was ever told to keep off of the premises or that the other children who testified had received such instructions. That children played on and about the premises and in the elevator is undisputed, although the defendant's evidence is that it did not know any children had ever been in the dummy elevator, which was easily accessible to the children.

¶4 Around the top pulley there were boards, and to enter the elevator chain or cups it was necessary for such children to climb about four feet on a small ladder and get upon the same from the top. The evidence is conflicting as to whether the opening at the top was large enough for a child to get down on the cups without removing some of the boards, but if any boards covered the top they need only to be lifted off by such child for the purpose of entering and standing upon the cups. The child would stand upon the cups and another child would turn the pulley and he would thus ride to the bottom. The little boy was so riding on these cups when the elevator belt turned throwing him between the belt 'and the bottom-pulley, breaking his right leg between the knee and hip in two, places, crushing and bruising his right knee, breaking his pelvic bone in several places, breaking a lower left rib and seriously injuring him generally. The belt had to be cut in order to remove him.

¶5 The elements of negligence alleged are that the defendant failed to fasten the elevator belt so that it could not turn, neglected to close the opening at the top and the bottom of the elevator building, all of which could have been done at a very insignificant and trifling expense; failed and neglected to place a fence about the equipment or to post and maintain danger warning signs, all of which could have been done at a small and trifling expense; and failed to take any steps to protect the plaintiff, and the plaintiff was a child eleven years of age and knew nothing of the dangers of playing with said equipment.

¶6 A judgment was returned in favor of the plaintiff for the sum of $ 3,000.

¶7 The contention of the defendant is that there is no evidence that would warrant the jury in finding the defendant wantonly and willfully injured the plaintiff, and that the defendant owed no duty to the boy except to refrain from wantonly and willfully injuring him; that he was a trespasser and neither an invitee nor a licensee. It is argued that the evidence was not sufficient to show that the plaintiff was a licensee, but that the evidence shows that the plaintiff was a trespasser, and the verdict of the jury was returned upon the theory that the plaintiff was a licensee.

¶8 In this connection instruction No. 8 reads:

"You are instructed that if you find by a fair weight and preponderance of the evidence that the plaintiff, Herbert Thomas, and other children had, for a long period of time before July 23, 1931, frequently gone upon the defendant's premises and played in and about defendant's dummy elevator and the equipment therein, without objection of consequence on the part of the defendant, and that the defendant knew, or by the exercise of reasonable diligence could have known, that the plaintiff and other children were making such use of defendant's premises and appliances, then the plaintiff, on July 23, 1931, in going upon the defendant's premises and into their dummy elevator for purposes of play, was a licensee of the defendant."

¶9 The instructions are voluminous and un, necessarily long. No plea was made of contributory negligence and this issue was not submitted to the jury. The court did instruct the jury that the duty and obligation of a landowner to his licensee was to refrain from injuring him intentionally or wantonly.

¶10 The court further instructed the Jury that any omission on the part of the landowner involving a reckless disregard for the safety of his licensee in regard to any dangerous machinery or condition on his premises, and which is obvious to the landowner, may amount to wantonness, and...