Salter v. Deweese-Gammill Lumber Co.

• Decision Date: 22 December 1924
• Docket Number: 24208
• Citation: 102 So. 268,137 Miss. 229
• Court: Mississippi Supreme Court
• Parties: SALTER v. DEWEESE-GAMMILL LUMBER CO. [*]

102 So. 268

137 Miss. 229

SALTER v. DEWEESE-GAMMILL LUMBER CO. ^[*]

No. 24208

Supreme Court of Mississippi

December 22, 1924

Division A

NEGLIGENCE. Attractive nuisance doctrine held inapplicable to trespassing child appreciating danger.

The attractive nuisance doctrine, as applied to injuries received by trespassing children, has no application to the case of a trespassing child injured while playing around a planing mill by coming in contact with a rapidly revolving unguarded shafting, where the danger of such contact was manifest, and the child was fully capable of and did appreciate the danger.

HON. G E. WILSON, Judge.

APPEAL from circuit court of Neshoba county, HON. G. E. WILSON Judge.

Action by Roger Salter, by next friend, Albert Salter, against the Deweese-Gammill Lumber Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Affirmed.

Marion W. Reily and Byrd & Byrd, for appellant.

It is our position that the defendant in this case rendered itself liable by leaving unguarded and dangerous machinery at a point which children were likely to be attracted thereto in such a way as to cause them to suffer injuries by reason of the unguarded and dangerous machinery, and the injury sustained in this case is the proximate result of such condition. This rule of law is announced in 29 Cyc. 464. While there has been some differences in the exact application of this rule, and the pronouncement thereof by the courts, it is believed that the facts in each case have influenced some inaccurate statements of the law, but that in ell cases the courts have been disposed to give recognition to the fact that there are certain propensities common to all children, rendering them curious and investigating of all things strange and unusual and unable to understand the dangers incident to certain classes of machinery and other agencies more readily understood by older people, and in those particulars wherein the probable result of the common conduct of children incident to these peculiarities of childhood, is likely to result in their injury, the law charges the owner of such machinery or other dangerous agency, with the duty of guarding the same so as not to cause this kind of injury. Nashville Lumber Co. v A. L. Busby, 38 L. R. A. (N. S.) 754; Brinkley Car Works v. Cooper, 46 Am. St. Rep. 216; St. L. & S. F. R. R. Co. v. Williams, 33 L. R. A. (N. S.) 94; U. P. Ry. Co. v. McDonald, 38 U. S. (L. Ed.) 434; Continental Refining Co. v. Henderson, 123 Am. St. Rep. 668; Clover Creamery Co. v. Diehl, 93 So. 196; Mattson v. M. & N.W. Ry. Co., 111 Am. St. Rep. 483; Dampf v. Railroad Co., 95 Miss. 85; Spengler v. Williams, 67 Miss. 1; Temple v. Electric Light Co., 89 Miss. 1; Hamlin v. Gayno, 76 So. 633.

The question here is, did plaintiff make out such a case as should have been submitted to the jury for their determination. The appellant's contention, and we submit that it is borne out by the record, is that a jury case was made. The record shows that the unguarded machinery was dangerous and that its dangerous condition was known to the defendants. That the defendants knew of the habit of children to play in and about and with this machinery, and the defendants knew, as they are charged by law with knowing, the natural instincts of children and that naturally children would be drawn to and attracted by this machinery. That they permitted children to be around and about said machinery without any warnings or protest on their part. It is the settled law of this state, that where a person maintains a thing which is attractive to children, and a child is attracted thereto and is injured such person must respond in damages. To support this doctrine, see Spengler v. Williams, 6 So. 613; Mackey v. Vicksburg, 2 So. 178; Temple v. McComb, 42 So. 874; Thompson v. I. C. R. R. Co., 63 So. 185; U. P. R. R. Co. v. McDonald, supra; Sioux City & P. R. R. Co. v. Stout, 21 U.S. (L. Ed.) 745; Biggs, Admr. v. Barb-Wire Co., 44 L. R. A. 655.

The question of negligence in this case, if any, should have been submitted to the jury, as well as the question as to whether this machinery, etc., was an attractive nuisance and as to whether the child was attracted thereby, as well as the question as to whether plaintiff was a trespasser. No question of law presented itself.

Watkins, Watkins Eager and Paul Dees, for appellee.

I. Breach of Duty. This is an action for tortious negligence, which necessarily involves the proposition that the appellant must establish on the part of the appellees a breach of some legal duty owed by the appellees to the appellant. In other words, the appellees could not be guilty of negligence towards the appellant unless (1) they owed him some legal duty; (2) were guilty of a breach thereof. Subject, Torts, 26 R. C. L. 758; 29 Cyc. 419; Clarke v. I. C. R. R. Co., 286 F. 915; Platt v. Southern Photo Material Co., 60 S.E. 1068; Cleveland Ry. Co. v. Morrey, 88 N.E. 923.

II. No Presumption of Negligence. It is not sufficient for the plaintiff to prove the happening of the injury complained of. Upon the other hand, the burden of proof rests upon the plaintiff to establish injury and damage as the direct and proximate result of appellee's negligence. 29 Cyc. 597; Samuel v. Wiedman, 295 F. 314; Harper v. Ray, 27 Miss. 622; I. C. R. R. Co. v. Cathey, 70 Miss. 332.

III. No Duty to Protect Trespassers. 29 Cyc. 442; 20 R. C. L. 57, 64; I. C. R. R. Co. v. Arnola, 78 Miss. 787; Dyche v. R. R. Co., 79 Miss. 361; Y. & M. V. R. R. Co. v. Metger, 84 Miss. 242; Allen v. Y. & M. V. R. R. Co., 111 Miss. 267; M. & O. R. R. Co. v. Stroud, 64 Miss. 784; Richmond R. R. Co. v. Burnsed, 70 Miss. 437; Ingram-Day Lbr. Co. v. Frank Harvey, 98 Miss. 11; Albion Lbr. Co. v. De Nobra, 72 F. 739.

IV. The Rule as to Non-liability to Trespassers Applies Equally to Children. 29 Cyc. 445; 20 R. C. L. 60; L. & N. R. R. Co. v. Williams, 69 Miss. 631; Y. & M. v. R. R. Co. v. Hough, 111 Miss. 486; United Zinc & Chemical Co. v. Van Britt, 258 U.S. 268, 66 L.Ed. 615; N. Y., N. H., & H. R. R. Co. v. Frutcher, 260 U.S. 141, 67 L.Ed. 173; Hermes v. Hatfield Coal Co. (Ky.), 23 L. R. A. (N. S.) 724; Bottum v. Hawkes (Vt.), 35 L. R. A. (N. S.) 440; Hart v. Mason City Brick & Tile Co., 38 L. R. A. (N. S.) 1173; Savannah F. & W. Ry. Co. v. Beavers (Ga.), 54 L. R. A. 214; State ex rel. Kansas City v. Ellison (Mo.), 220 S.W. 498; Colby, Admr. v. Chicago, etc. Ry. Co., 216 Ill. 315.

V. Doctrine of Attractive Nuisance. We have shown the court in the statement of facts that the appellant was a trespasser on the private property of the appellees; that the place where he received his injury was at a rather remote part of the premiss, on a private side track, bounded on one side by the planing mill, and on the other by a rough lumber shed; that there was no highway or path along there. We have shown the court not only that the appellant was a trespasser, but that the doctrine of non-liability as a trespasser was just as applicable to children as to adults. It must be borne in mine, in order that the proper limit of the doctrine of the Turntable Cases shall be preserved, that the turntable was attractive to children; there was an implied invitation to use it; it was seductive and alluring, in that from appearances it was perfectly harmless. This court in the case of Dampf v. R. R. Co., 95 Miss. 85, without discussion, apparently approved the doctrine. The disposition of courts, including the supreme court of the United States, however, has been not to extend the doctrine any further, but there has been rather a noticeable re-action therefrom. United Zinc & Chemical Co. v. Van Britt, supra; New York, New Haven & Hartford R. R. Co. v. Frutcher, supra; 36 Harvard Law Review (No. 7) 826. The doctrine of attractive nuisance has a very limited scope. It forms an exception to the general rule, and while each case must rest on its own facts, the principle is confined within certain narrow limits. All the authorities hold, however, that the following facts must be present: 1. The owner must know of the presence of the children. Witte v. Stifel, 47 Am. St. Rep. (Mo.) 668; 29 Cyc. 448; Fitzmaurice v. R. R. Co., 3 L. R. A. (N. S.) 149; Hart v. Mason City Brick & Tile Co., supra; Mayfield Water Co. v. Webb, 18 L. R. A. (Ky.) (N. S.) 179. 2. The second element of liability, which must always be present, is that the danger must be a latent one. Erickson v. Great Northern Ry. Co., 83 Am. St. Rep. (Minn.) 410; Coon v. Railroad Co., 1915-D L. R. A. (Ky.) 160; Zartmer v. George (Wis.), 52 L. R. A. (N. S.) 129; 29 Cyc. 449, par. 4. 3. The machinery must have formed and constituted a peril not appreciated by the child. Barrett v. Southern Pac. Ry. Co. (Col.), 25 Am. St. Rep. 186; Pekin v. McMahon (Ill.), 45 Am. St. Rep. 114; Chicago v. Krayenbull (Neb.), 59 L. R. A. 920.

In the present case the plaintiff seems fully to have appreciated any danger of going to the shafting, because he stood at what he had every right to believe was a safe distance. According to the brief for appellant, he did not go closer than three feet to it. The probabilities are he was even as much as four feet from it. The undisputed proof shows that the appellant fully appreciated the danger. 4. The authorities are equally well established that the child must have been attracted to that thing claimed to be a dangerous nuisance. Pekin v. McMahon, supra; Sidal v. Jansen (Ill.), 39 L. R. A. 112; Witte v. Stifel, supra; Branan v. Wimsatt, 298 F. 833 (D. C.).

VI. Irrespective of the fact that the cuff on the shafting had a set screw on it which was unguarded, the appellees could not be held to contemplate the probability of any such injury and the proximate cause of the injury was that the plaintiff, while standing at a perfectly...