Tiller v. Baisden

• Decision Date: 06 November 1945
• Docket Number: (No. 9709)
• Citation: 128 W.Va. 126
• Court: West Virginia Supreme Court
• Parties: Jackie Tiller, An Infant, etc. v. Jeff Baisden1945.

128 W.Va. 126

Jackie Tiller, An Infant, etc.

v.Jeff Baisden

(No. 9709)

Supreme Court of Appeals of West Virginia.

Submitted September 25, 1945.

Decided November 6, 1945.

Negligence

A controlled fire used to destroy trash and other refuee is not a dangerous instrumentality or agency, such as is required to be guarded against the possibility that children may be attracted thereby and suffer injury therefrom.

Error to Circuit Court, Logan County.

Action by Jackie Tiller, an infant, by his next friend, against Jeff Baisden, for personal injuries caused by a fire. To review a judgment rendered after a motion to strike out plaintiff's evidence was sustained and the jury was directed to return a verdict for defendant, plaintiff brings error.

Affirmed.

Lilly & Lilly, and Damron & Damron, for plaintiff in error.

R. H. Casio, for defendant in error. Fox, Judge:

This is an action at law instituted in the Circuit Court of Logan County, in which Jackie Tiller, who sues by his next friend, is plaintiff, and Jeff Baisden, is defendant. On the trial of the action, and at the conclusion of the plaintiff's case, a motion was made to strike out plaintiff's evidence. That motion was sustained, the jury directed to return a verdict for the defendant, and judgment was rendered in his favor. Plaintiff prosecutes this writ of error.

The action grows out of an injury sustained by plaintiff, who, at the date of the injury, was a child some two months past the age of five years. The child suffered a severe burn on the lower left leg, which required treatment during a period of approximately three months. Plaintiff's testimony shows that defendant operated a grocery store in a rural community. The store faced a paved highway, which extended between the store and a stream. The distance from the defendant's store building across the highway to the stream was approximately thirty feet. There was a berm varying in width from three to six feet, between the porch of store building and the highway. The paved surface of the highway was approximately eighteen feet in width. The ground on the side of the road opposite the store sloped from six to eight feet from near the edge of the highway to the stream. It was the custom of defendant, over a considerable period, to burn paper, boxes and other refuse on the bank of the stream opposite his store. A short distance from the point at which such refuse was burned, there was a bridge over the stream where children were accustomed to gather and play, and from there along the road in front of the store. On the day plaintiff was burned, an employee of defendant had ignited a bonfire out of trash and refuse on the bank of the stream and near the edge of the highway. At the time of plaintiff's injury the bonfire was burning, but had not reached large proportions, and was under control. While an employee of defendant was at the fire, whether engaged in guarding it is not shown, two persons drove up in front of the store, and called the employee across the highway to make some inquiry about merchandise. During this absence of the employee, plaintiff's clothes caught fire, and his injury resulted. While plaintiff was accompanied by other children, the manner in which his clothes caught fire is not shown. Evidently, the injury to the plaintiff resulted from his daring or curiosity.

The action is prosecuted on the theory that the bontire in question was an attractive nuisance. The declaration refers to it as such. It has been repeatedly held by this Court that the doctrine of attractive nuisance is not recognized in this State. Ritz v. City of Wheeling, 45 W. Va. 262, 31 S.E. 993; Uthermohlen v. Boggs Run Co., 50 W. Va. 457, 40 S.E. 410; Conrad v. Baltimore & Ohio Railroad Co., 64 W. Va. 176, 61 S.E. 44; Martino v. Rotondi, 91 W. Va. 482, 113 S.E. 760; Adams, Admr. v. Virginian Gasoline & Oil Co., 109 W. Va. 631, 156 S. E. 63; White v. Kanawha City Co., 127 W. Va. 566, 34 S.E. 2d 17. We would attach no particular importance to the fact that the declaration proceeds upon a theory of re covery not recognized in this jurisdiction, should the plaintiff establish a right to recover on the facts pleaded.

Following the repudiation of the attractive nuisance doctrine, as shown by the cases cited above, this Court has permitted recovery for the injury or death of children against the owner of what is known as a dangerous instrumentality or agency by him negligently used, stored or otherwise employed, and stress is laid on the duty of such owner to take particular care to guard such instrumentalities or agencies against the natural curiosity of children, especially those of tender years. For example in Rine v. Morris, 99 W. Va. 52, 127 S.E. 908, the defendant had left a road scraper on the side of a highway near the home of the plaintiff, from the lever of which machine a rope was left hanging. A child eight years old pulled the rope, causing the lever to fall, resulting in injury to her. This Court held: "One leaving an instrumentality dangerous to children at a place where they have a right to be, is charged with notice of its attraction to them. It is his duty to use ordinary care to prevent injury to a child thereby." In Wellman, Admr. v. Fordson Coal Co., 105 W. Va. 463, 143 S.E. 160, the same principle was followed. That was a case where an employee of the defendant had negligently permitted to fall and lie on the ground some blasting powder which plaintiff's decedent ignited, resulting in an explosion. In Colebank, Admr. v. Nellie Coal & Coke Co., 106 W. Va. 402, 145 S.E. 748, the defendant had negligently stored blasting powder on its premises in a place accessible to children, in a vicinity where children were known to congregate and play. It was held that the question of the negligence of the defendant should have been submitted to the jury. In Adams, Admr. v. Virginian Gasoline & Oil Co., supra, it was held that: "An owner or proprietor of a dangerous instrumentality must exercise reasonable care to avoid injury to a trespassing child whose presence at the time and place of danger was either known to the proprietor or might reasonably have been anticipated." This was a case where gasoline had been allowed to accumulate in a pool, to which children were attracted, and one of them lost his life. In Wiseman, Admx. v. Terry, 111 W. Va 620, 163 S.E. 425, the principles announced in the Adams case were followed. This was a case where children were permitted to gather around a stone quarry, and an explosion occurred which resulted in the death of three of them. In Parsons, Admr. v. Appalachian Electric Power Co., 115 W. Va. 450, 176 S.E. 862, the plaintiff's decedent lost his life through tampering with an uncovered electric wire placed on a public bridge at a distance of seventeen or eighteen feet above the floor thereof. It was held that the question of contributory negligence, on the part of plaintiff's decedent, was one for the jury, thus clearly recognizing the legal duty of the defendant not to maintain an uncovered electric wire at a place where children might reasonably be expected to come in contact therewith.

The cases cited above refer to unguarded dangerous instrumentalities or agencies of a nature attractive to children. In most instances these dangers are not open and apparent, but latent. They differ from fire in that anyone, even a child of tender years, knows what fire is, can readily observe it and recognize its dangers. Our decisions have not reached the point of holding that a controlled fire is a dangerous instrumentality or agency. Of course, everyone recognizes that fire may cause injury if permitted to get out of control, and the law makes actionable the negligent conduct of a person starting a fire, and allowing it to spread to his neighbors' premises. Whether the dangerous instrumentality rule should be extended to include a controlled bonfire has not been decided in this jurisdiction.

Having regard to this state of the law in this jurisdiction, we have made an independent investigation of the cases decided in other jurisdictions, and on this question we find the authorities are somewhat divided. In Roman v. City of Leavenworth, 90 Kans. 379, 133 P. 551, a verdict and judgment against an eleven year old boy who was burned at the city dump, where there was an attendant paid by the city, was set aside and a new trial awarded, and it was held that the city was required to exercise reasonable care to keep children away. In Piraccini v. Director General of Railroads, 95 N.J. L. 114, 112 A. 311, a railroad company was held liable for the death of a child five years old as a result of burns suffered from a fire on its property near a playground, because of its responsibility for use of a dangerous agency. This case was reported in 36 A.L.R. 294, following which there is a note on this subject. The following comment is there made: "The reported case * * * is of interest as being apparently the only instance in which liability for the burning of a child has been put upon the...