Ray v. Hutchison

• Decision Date: 25 April 1933
• Citation: 68 S.W.2d 948
• Parties: RAY v. HUTCHISON.
• Court: Tennessee Supreme Court

68 S.W.2d 948

RAY v. HUTCHISON.

Court of Appeals of Tennessee, Middle Section.

April 25, 1933.

Certiorari Denied by Supreme Court March 10, 1934.

Appeal in Error from Second Circuit Court, Davidson County; A. B. Neil, Judge.

Action by Clarence Ray, by next friend, etc., against Albert W. Hutchison. Judgment for defendant, and plaintiff appeals in error.

Affirmed.

Kannard & Kannard, of Nashville, for plaintiff in error Ray.

Lee Douglas and C. Wade Wilkes, both of Nashville, for defendant in error Hutchison.

FAW, Presiding Judge.

This action was instituted in the circuit court of Davidson county by Clarence Ray, a boy between four and five years of age, suing by his mother, Minnie Ray, as next friend, against Albert W. Hutchison, to recover $5,000 as damages for personal injuries suffered by the infant plaintiff as the result of alleged negligence of the defendant.

The case went to trial before a jury in the Second circuit court of Davidson county on the issues made by the defendant's plea of not guilty to the plaintiff's declaration, and, at the close of the plaintiff's evidence in chief, the court, on motion of the defendant, gave the jury peremptory instructions to return a verdict for the defendant, which was done by the jury, and the court thereupon dismissed plaintiff's suit, at the cost of the plaintiff.

A motion for a new trial on behalf of plaintiff was made and overruled, and thereupon plaintiff prayed, obtained, and perfected an appeal in the nature of a writ of error to this court, and is here insisting, through his assignments of error, that the trial court erred in sustaining defendant's motion for a directed verdict and dismissing plaintiff's action.

In the trial court, the plaintiff sought to predicate his cause of action upon the "attractive nuisance doctrine." The averments of his declaration are as follows:

"That the defendant, Albert W. Hutchison, is a general contractor, and as such pursues the business of constructing, repairing and painting buildings, plants, streets, sidewalks, etc., and that in such work it is necessary for him to have and own a considerable amount of heavy pieces of lumber, scaffoldings and wooden horses, used for scaffolding purposes; that the above mentioned horses are made out of pieces of timber about two inches thick, about four inches wide and six or seven feet in length; that these horses are constructed out of these pieces of timber in such a way that when completed they stand on the ground about five feet in height and consist of four legs attached at the top to the ends of a heavy piece of timber about six feet in length; that two of these legs are nailed at each end of the top piece and spread out at the bottom where they touch the ground, so that the feet or bottom end of these legs are some three or four feet apart. These horses are constructed so that when set upon the ground, or upon any other solid place, plank and timber can be placed upon the top of the same in such a way that the same will constitute a platform or scaffold upon which people can stand in doing work.

"That a few days prior to May 14, 1931, the defendant, Albert W. Hutchison, piled and stored upon an unfenced, unprotected and unguarded vacant lot and about twenty-five or thirty feet from the little home on the back of lot No. 1816 Cedar Street, Nashville, Tennessee, where plaintiff was living with his mother and next friend, Minnie Ray, some fifty or sixty of these wooden horses, together with a lot of heavy pieces of timber and plank; that in doing so the defendant placed said horses and timber upon said lot in an exceedingly careless, promiscuous and topsy turvy way, so that the same could be easily shaken, toppled over or knocked down; that the said horses, timber and plank were piled upon top of each other without any regard for the way in which they were so piled and without regard for the safety of children playing around the same. That the vacant lot upon which this lumber and stuff was stored and piled by the defendant, is a sloping lot, the same sloping from the outer edge or end of the same toward the little home or house in which plaintiff was living with his mother and next friend; and the defendant, by his agents or servants, placed two of the horses, above described, right at the edge of said lot nearest plaintiff's mother's home with the ends thereof extending out from the edge of said promiscuous pile of lumber and horses, toward said home and across the top of these two horses which were located some eight or ten feet apart, there was piled or placed by the defendant, his agents or servants, one or two heavy plank boards; that these two horses were upon sloping ground which sloped toward plaintiff's home, and the defendant, his agents or servants, placed rocks under the lower legs of said horses in order to make the top of said horses as near level as possible. That the vacant lot upon which these wooden horses, plank and timber were stored and piled is in close proximity to several colored families, who have many small children of tender ages, and that the pile of scaffolding, lumber and horses, as above described, after being piled upon said lot, as aforesaid, became and was an attractive place for small children to play around and upon and constituted an attractive nuisance.

"That the defendant was guilty of the grossest kind of negligence in piling and storing the above described wooden horses, lumber, etc., upon this unfenced vacant lot in the way and manner as above set forth; that such pile of wooden horses, lumber and timber was left by the defendant, his agents or servants, after the same was piled upon said vacant lot in a very dangerous condition; that the same was known by the defendant, his agents or servants, to be a very dangerous place for children to be about and around, or should have been so known by them had they exercised any degree whatever of common sense and prudence; that this pile of lumber and timber, as left by the defendant, his agents or servants, upon said vacant lot constituted a dangerous trap, not only for small children who might be attracted thereby, but even to people of mature age.

"That late in the afternoon of May 14, 1931, plaintiff, who is a small boy of only four years of age, with other small children, was playing around and upon this pile of wooden horses, timbers and lumber, and in so doing attempted to climb upon, took hold of or came in contact with one of the two horses across which the heavy pieces of plank or timber were piled, as aforesaid, causing the same to fall over and upon plaintiff, breaking his left leg above the knee and otherwise bruising and cutting his legs and body, which caused him to be taken to the General Hospital in the City of Nashville, where he remained for five weeks; that on account of his injury he suffered much pain and mental anguish, and is still suffering and is permanently injured; that his injury from which he suffered pain and mental anguish, was caused by the gross and careless negligence of the defendant, his agents or servants, in storing and piling the above mentioned wooden horses, timbers and lumber upon said vacant space of ground in such a way as aforesaid, to be dangerous to small children like the plaintiff playing around and upon the same, and in such a way that the same was an attractive nuisance and place to play to children of tender age, like plaintiff, and that said gross negligence upon the part of the defendant, his agents or servants, as aforesaid, was the proximate cause of plaintiff's injuries, for which he sues, as aforesaid, by his next friend, Minnie Ray, for the sum of $5,000.00, and demands a jury to try his case."

During the period of time covered by the events involved in this case, the plaintiff's witness Frank Douglas occupied, as a tenant, a house and lot known as No. 1820 Cedar street in the city of Nashville. This lot was on the north side of Cedar street — the general direction of Cedar street being east and west — and the house in which Douglas lived was on the south end of the lot, fronting on Cedar street, and the lot was about 30 feet wide and extended northward between parallel lines to an alley in the rear, which alley connected Nineteenth avenue on the east with Twentieth avenue on the west.

Plaintiff lived with his mother in a small house which fronted on the aforesaid alley at the rear, or north, end of the lot numbered 1816 Cedar street. There was a vacant lot about 30 feet wide between the home of plaintiff and the aforesaid Frank Douglas lot, and there was a fence along the entire west line of the Douglas lot from Cedar street to the alley, but otherwise the locus in quo was unfenced. The fence just mentioned was about 100 feet from and west of 19th Avenue.

The Frank Douglas lot was in a thickly settled residence neighborhood; that is to say, there were homes in which many children, both white and colored, lived in close proximity thereto, along Cedar street, Nineteenth avenue, and the north side of the alley before mentioned.

In the spring of 1931, probably beginning in March, defendant, Hutchison, pursuant to a rental contract with Frank Douglas, stored about seventy-two "wooden horses" and some mortar boards and other lumber in the vacant "back yard" of the Frank Douglas lot before described. So far as appears, the defendant did not supervise or assist in the placing of these materials on the Douglas lot, but they were brought there in defendant's truck by John Nelson and "stacked" by Frank Douglas and John Nelson, both of whom were employees of defendant Hutchison.

According to the testimony of plaintiff's witness Frank Douglas, he had had thirty-three years' experience in stacking lumber, and John Nelson had experience in stacking lumber. Douglas states that he was there when each load was brought and stacked, and his testimony as to the manner in which it was all stacked is as follows:

"This lumber was stacked...