State ex rel. Callahan Const. Co. v. Hughes

• Citation: 159 S.W.2d 251
• Decision Date: 30 October 1941
• Docket Number: No. 37561.,37561.
• Parties: STATE OF MISSOURI at the relation of W.E. CALLAHAN CONSTRUCTION COMPANY, Relator, v. WILLIAM C. HUGHES ET AL., Judges of the St. Louis Court of Appeals.
• Court: United States State Supreme Court of Missouri

159 S.W.2d 251

STATE OF MISSOURI at the relation of W.E. CALLAHAN CONSTRUCTION COMPANY, Relator, v. WILLIAM C. HUGHES ET AL., Judges of the St. Louis Court of Appeals.

No. 37561.

Supreme Court of Missouri.

Division One, October 30, 1941.

Rehearing Denied, December 12, 1942.

Motion to Transfer to Banc Overruled, February 26, 1942.

Certiorari.

OPINION OF COURT OF APPEALS QUASHED.

John F. Evans for relator.

(1) In holding that an iron container, known as a "Cooper's Bucket," constituted an attractive nuisance, the opinion of the Court of Appeals is in conflict with controlling decisions of this court, which hold that the instrumentality must not only be inherently dangerous (in the sense that danger inheres in the instrumentality at all times, so as to require special precautions to be taken to prevent injury), but must also be so inherently attractive as to entice children into danger. Hull v. Gillioz, 334 Mo. 1227, 130 S.W. (2d) 623; O'Hara v. Laclede Gas Light Co., 244 Mo. 395, 148 S.W. 884. The opinion erroneously assumes that the iron bucket was an inherently dangerous instrumentality and that it constituted an attractive nuisance because of proof that children were in the habit of playing around it. It does not find that the buckets were so inherently attractive as to actually entice children on the premises, a necessary element of the doctrine. (2) The effect of respondents' opinion is to extend the doctrine to the point where it would become a jury question in every case as to whether or not a particular instrumentality was inherently dangerous and attractive to children. This is in conflict with a general principle of law enunciated in controlling decisions, that the attractive nuisance doctrine will not be extended beyond the principle of the turntable cases. Howard v. Transmission Co., 316 Mo. 317, 289 S.W. 597; Buddy v. Union Terminal, 276 Mo. 276, 207 S.W. 821; State ex rel. Light & Power Co. v. Trimble, 315 Mo. 32, 285 S.W. 455; Kelly v. Benas, 217 Mo. 1, 116 S.W. 557. (3) In holding that an iron container constituted an attractive nuisance, the opinion is in direct conflict with several controlling decisions on similar facts. Kelly v. Benas, 217 Mo. 1, 116 S.W. 557; Rallo v. Construction Co., 291 Mo. 211, 236 S.W. 632; Witte v. Stifel, 126 Mo. 295, 28 S.W. 891; Buddy v. Union Terminal, 276 Mo. 276, 207 S.W. 821; Emery v. Thompson, 148 S.W. (2d) 479.

Clark M. Clifford and Lashly, Lashly, Miller & Clifford for respondents.

(1) On certiorari to review a judgment of the Court of Appeals the Supreme Court is concerned only with the question as to whether the judgment of the Court of Appeals is in "conflict" with previous controlling decisions of this court. State ex rel. South West Natl. Bank v. Ellison, 266 Mo. 423, 181 S.W. 998; State ex rel. Wabash Ry. Co. v. Ellison, 204 S.W. 396; State ex rel. Security Ins. Co. v. Trimble, 318 Mo. 173, 300 S.W. 812; State ex rel. American School of Osteopathy v. Daues, 322 Mo. 991, 18 S.W. (2d) 487; State ex rel. St. Charles v. Haid, 325 Mo. 107, 28 S.W. (2d) 97; State ex rel. Public Serv. Comm. v. Shain, 342 Mo. 867, 119 S.W. (2d) 220. (2) This court in determining the question of conflict, must read and consider the decisions in light of the facts and questions presented. State ex rel. Gatewood v. Trimble, 333 Mo. 207, 62 S.W. (2d) 756. (3) On certiorari to review a judgment of the Court of Appeals for alleged conflict with decisions of the Supreme Court of Missouri, this court in determining that question will take as true and consider only the facts as found and stated in the opinion of the Court of Appeals. State ex rel. Dunham v. Ellison, 278 Mo. 649, 213 S.W. 459; State ex rel. St. Louis-S.F. Ry. Co. v. Reynolds, 289 Mo. 479, 233 S.W. 219; State ex rel. St. Louis-S.F. Ry. Co. v. Haid, 327 Mo. 217, 37 S.W. (2d) 437; State ex rel. Bennett v. Becker, 335 Mo. 1177, 76 S.W. (2d) 363. (4) The Court of Appeals, in holding that the evidence was sufficient to support the claim that an iron container, known as a "Cooper's Bucket," left by defendant (relator here) with an iron handle in an upright position and unlocked was (1) inherently dangerous and as located in a rock quarry situated in a populous city with six (6) other "Cooper's Buckets" of like size was (2) attractive to children, did not bring itself in conflict with the latest controlling decision of this court. This holding is not only in harmony with the latest controlling decision of this court but is in accord with the principles of law enunciated in earlier decisions of this court. Hull v. Gillioz, 344 Mo. 1227, 130 S.W. (2d) 623; Emery v. Thompson, 148 S.W. (2d) 479; Berry v. St. Louis, M. & S.E. Co., 214 Mo. 593, 114 S.W. 27.

BRADLEY, C.

Certiorari to quash the record and opinion of the St. Louis Court of Appeals in Street et ux. v. W.E. Callahan Construction Co. (Mo. App.), 147 S.W. (2d) 153. We are concerned only with whether or not the opinion is in conflict with the last controlling decision of this court on the point ruled, and for the facts we look solely to the opinion of the Court of Appeals. State ex rel. St. Louis-San Francisco Ry. Co. v. Shain et al., 345 Mo. 574, 134 S.W. (2d) 89, and cases there cited.

Donald Street, 9 years old, and son of Charles Street and wife, was killed while playing with other boys, around cooper's buckets at the stone quarry of the relator in southwest St. Louis. The father and mother obtained a judgment against relator for $6000 and that judgment was affirmed by the court of appeals, and the present cause in certiorari followed.

The cause in the court of appeals proceeded on the theory that the cooper's buckets at the quarry constituted an attractive nuisance likely to cause injury to children playing about them and that relator, in the exercise of ordinary care, should have so anticipated.

The court of appeals stated the facts as follows:

"Donald was killed while playing around one of these cooper's buckets. He was nine years old at the time. The bucket was about three and a half to four feet tall and about four feet in diameter. The handle when upright was higher than the bucket, about five feet above the bucket. The handle was rectangular in shape. The ends of the handle were fastened at about the middle of the bucket. The handle was about one inch thick and four inches wide. The bucket and the handle were made of iron or steel. There was a ring on the handle the purpose of which was to hold the handle upright by being fastened over an upright piece of steel at the top of the bucket. The buckets were all alike in size and structure. There were seven of these buckets in the quarry at the time of the accident. The handles of two of the buckets were in an upright position. The others were lowered to the ground. One of the handles in an upright position was held in position with the ring fastened over the upright metal piece. The handle of the bucket about which Donald was playing when he was killed was in an upright position, but the ring was not fastened over the upright metal piece so as to prevent it from falling. The result was that it fell and struck Donald across the back of the neck and killed him instantly. The handle was so heavy that it required the full strength of four or five boys to lift it off of Donald's neck.

"The quarry was located in the southwest part of the city of St. Louis, about a half block from Winona Street. There were numerous dwelling houses near the quarry, the closest houses being only about seventy-five feet from the quarry.

"Prior to the accident which caused Donald's death, defendant had been operating the quarry for three or four months. During that time children had habitually and almost daily resorted to the quarry and played around the cooper's buckets, with the knowledge of defendant's employees working in the quarry. The children were never warned to keep away from the quarry except when the workmen were blasting. When the blasting was finished the boys would return to the buckets and renew their play, without any objection or warning on the part of defendant's employees. The quarry was not fenced, or otherwise enclosed, and there were no signs posted to warn children to keep away from the quarry or the buckets.

"On the day of the accident a group of boys, six in all, residing in the neighborhood of the quarry, arranged to go to Webster Groves to play in a sandpile somewhere in that neighborhood, while another person going with them was getting an old truck. On their way to Webster, as they were passing by defendant's quarry, they saw the quarry and the buckets in the quarry, and decided to go into the quarry and play about the buckets. They had all played about the buckets many times before, with the knowledge and under the immediate observation of defendant's employees, and without any objection or warning from the employees to keep away from the quarry or the buckets. The boys usually went to the quarry to play about the buckets on Saturdays and after school on other days. They played hie spy, or hide and go seek, and tag, for which it appears the buckets as located in the quarry were well adapted.

"One of the boys testified: `Before Donald was killed the boys would go over to the quarry every evening after school during the week and on Saturdays and play hide and go seek and tag and...