Sanders v. Baird

• Decision Date: 31 January 1938
• Docket Number: 4-4924
• Citation: 112 S.W.2d 966,195 Ark. 535
• Parties: SANDERS v. BAIRD
• Court: Arkansas Supreme Court

112 S.W.2d 966

195 Ark. 535

SANDERS v. BAIRD

4-4924

Supreme Court of Arkansas

January 31, 1938

Appeal from Pulaski Circuit Court, Third Division; J. S. Utley Judge; affirmed.

Judgment affirmed.

Tom W. Campbell, Byron R. Bogard and Joe Norbury, for appellants.

Ben D. Brickhouse and Linwood L. Brickhouse, for appellee.

OPINION

MCHANEY, J.

Appellant, a minor, brought this action by his father and next friend against appellee to recover damages for personal injuries sustained by him in falling from a large outdoor signboard erected and owned by appellee on a lot in North Little Rock, near the home of appellant. The material part of the complaint, necessary for a determination of the question here presented, is as follows:

"On June 12, 1937, said defendant owned and maintained a large signboard in a grove of trees in North Little Rock near the home of these plaintiffs, which signboard the defendant had caused to be erected in said grove among the trees at some time prior to June 12, 1937. The place where the defendant erected and maintained said signboard was, at the time defendant erected it, there and on June 12, 1937, unenclosed and was a place where the children, and especially the small boys of like age as the said Louis Edward Sanders residing in that portion of North Little Rock, had long been accustomed to go and to play. A wide, plain, much-traveled and well-defined footpath then and there extended through said grove and near said signboard and children of the age of the said Louis Edward Sanders were then and there accustomed, and such children had long been accustomed, to go along said footpath and to congregate and to loiter and play under and among the trees at the place where the defendant thus erected and maintained said signboard.

"The said signboard was constructed at the edge of said grove of trees and facing upon a public street that passed along the side of the said grove, framework supporting said signboard and at the rear thereof, extending back under the trees in said grove. The said framework at the rear of said signboard and supporting the same consisted of a number of brace timbers, the lower ends of which were driven into the ground several feet in the rear of the bottom of said signboard, which brace timbers extended from the ground to the top of said signboard at intervals along the back of said signboard of seven or eight feet; and at a distance of seven or eight feet from the ground there was nailed to the said brace timbers a horizontal timber approximately 2 by 4 inches in size; and cross-braces extended from the bottom of one of said brace timbers up to the point where the said horizontal timber was nailed to the next succeeding brace timber; and the said brace timbers at the bottom were fastened to large square posts which were securely driven into the ground, the said posts being square and flat on top and the tops thereof being about three feet from the ground.

"The said framework supporting the large signboard and thus constructed and maintained by the defendant in the rear of his said signboard and under the shade trees where the plaintiff, Louis Edward Sanders, and many other boys of like age were accustomed to gather and to play constituted an attractive nuisance, and the character of the construction of the said framework and its location in the very midst of the playground of said plaintiff and his small boy companions, tempted them to climb upon said framework of said signboard and to play thereon.

"The defendant, although he well knew at the time he so constructed and maintained said signboard and framework in the rear thereof that little boys of like age of said Louis Edward Sanders were accustomed to gather and to play under the trees at that point, and that they would continue to gather and to play there and would probably be attracted by and induced to climb upon the said timbers supporting said signboard and to fall therefrom and be injured, the defendant, nevertheless, wholly failed and neglected to place any fence or other enclosure about the rear of said signboard to prevent boys from climbing upon the same, but left the said framework of said signboard wholly unguarded and exposed to tempt little boys to climb thereon to their injury.

"On June 12, 1937, the said plaintiff, Louis Edward Sanders, in company with another boy of about his age and who, like said plaintiff, lived near where the said signboard had been erected by the defendant, went from their nearby homes along the said footpath through the said grove to their accustomed playground under said trees at the point where the said defendant had constructed and then maintained said signboard; and, being attracted by the facilities which the said timbers afforded them to climb, and being actuated by the natural impulse of boys of that age to climb, they climbed upon said timbers supporting said signboard and got upon the said horizontal timber which is fastened to the said brace timber at a distance of approximately seven feet from the ground; and when the said plaintiff, Louis Edward Sanders, got upon the said horizontal timber he fell from it to the ground beneath, a distance of about seven feet, and the force of said fall was so great that his right arm was thereby fractured and broken in and about the elbow joint and the elbow joint was dislocated and the bones of his lower right arm were broken and fractured and broken ends of the bones of his said arm were driven through the flesh and skin and into the ground, causing infection, all of which necessitated...