Twine v. Norris Grain Co.

• Decision Date: 09 January 1950
• Docket Number: No. 21205,21205
• Citation: 226 S.W.2d 415,241 Mo.App. 7
• Parties: TWINE v. NORRIS GRAIN CO.
• Court: Missouri Court of Appeals

Page 415

226 S.W.2d 415

241 Mo.App. 7

TWINE v. NORRIS GRAIN CO.

No. 21205.

Kansas City Court of Appeals, Missouri.

Jan. 9, 1950.

Watson, Ess, Whittaker, Marshall & Enggas, Douglas Stripp, all of Kansas City, for appellant.

David Trusty, Eugene R. Brouse, Sam Mandell, all of Kansas City, Popham, Thompson, Popham, Mandell & Trusty, Kansas City, of counsel, for respondent.

BOUR, Commissioner.

This is an appeal by defendant from a judgment for damages in the sum of $7,500 for medical expenses incurred by plaintiff, and for loss of her son's services on account of injuries sustained by him when he came in contact with certain electric equipment in a substation on the premises of a grain elevator located in North Kansas City, Missouri. The grain elevator in question is owned by the Chicago, Burlington & Quincy Railroad Company, and the defendant herein, Norris Grain Company, was the lessee and operator of the elevator at the time of the accident.

The petition alleged that for many years pigeons in great numbers had gathered in and about the electric substation on defendant's premises; that for many years boys and men had been in the habit of going on the premises to catch pigeons, with the knowledge of defendant which had made known to such boys and men that the pigeons were a nuisance and that it desired to be rid of them; that defendant made known to plaintiff's son and others that they had permission and approval and the invitation of defendant to catch pigeons on the premises; that on July 17, 1943, her son went on the premises for such purpose, with the consent and approval and by invitation of defendant, and climbed a stairway leading to a platform adjacent to the substation; that he was unaware of the dangerous nature of the equipment in the substation and was not given reasonable warning by defendant of such condition; that in attempting to catch a pigeon he stood upon the railing of the stairway and reached across a fence between himself and such electric equipment and touched or came into such close proximity to such equipment that he received a high voltage electric shock and was injured; that defendant knew or by the exercise of due care should have known that boys would be likely to come on the premises to catch pigeons and to go up the stairway, climb onto the railing, and come in close proximity to dangerous electric currents and be injured or killed; that defendant with such knowledge negligently consented to and approved the practice of large numbers of boys coming on the premises to hunt pigeons; that defendant so negligently constructed and maintained the substation as to constitute a dangerous trap and condition for young persons on the premises who were unfamiliar with the nature of the equipment thereon; that defendant negligently failed to give reasonable warning of this condition and failed to make said condition safe for persons using the premises as aforesaid; that defendant knew or by ordinary care could have known that persons so using the premises would not discover such condition or realize the risk thereof; that defendant negligently failed to maintain any locked door or gate at the entrance to the passageway leading to the substation and failed to maintain fences, screens or walls so as to prevent entrance by persons to such equipment and contact therewith; that there were metal plates on the substation fence which were grounded and which made an extremely dangerous condition for a person who reached across them and came into contact with the electric equipment; that defendant negligently failed to provide guards constructed of nonconducting materials which were not grounded; that defendant negligently failed to construct the substation in compliance with certain regulations of the National Electrical Safety Code; and that there was a general practice in the business to comply with said Code.

Defendant's answer denied all allegations of the petition except the fact of its incorporation and operation of the grain elevator, and pleaded contributory negligence on the part of plaintiff's son.

The substation in question was located in an area between three separate buildings on the premises of defendant, namely, the head house or main elevator building on the north, the drier house on the east, and the engine house on the south. The three open spaces between these buildings were closed off by three small mesh, woven wire fences. Thus the substation was entirely enclosed by the three buildings and the three woven wire fences. One such fence (where plaintiff's son was injured and hereinafter called 'the north fence') was on the north side of this area and ran east and west between the west side of the drier house and the east side of the southerly projection of the head house. There was no gate in the north fence. The only entry to the enclosure was through a gate in the wire fence across the west end of the area, which gate was kept locked because the substation was self-functioning and the presence of defendant's employees in the enclosure was not required. Whenever the equipment needed attention it was taken care of by the Power & Light Company or the Burlington Railroad. Power lines carrying 13,200 volts entered the substation from a pole located east of the drier house. A passageway about five feet wide and twenty-seven feet long extended from east to west between the head house on the north and the drier house on the south. The only entrance to the passageway was on the east and there was no gate or door at the entrance. This passageway was L-shaped because it turned left or to the south behind the drier house, at its west end. The far end of this passageway was closed off by the north fence which, with the adjoining buildings, formed a part of the enclosure of the substation, as explained above. At the end of the passageway, and outside the fence, a stairway led up to a platform alongside the east end of the fence and next to the drier house, giving access to a door in the drier house. The wire fence was 15 1/2 feet high. That portion of the fence back of and above the platform, and extending two or three feet to the west of it, was composed of two solid metal plates 7 feet, 8 1/2 inches in height, instead of the wire fencing used elsewhere, in order to prevent long, narrow objects, such as tools or pipes, being thrust through and into contact with the electric equipment on the other side of the fence. The platform was 7 feet, 10 inches above the ground. The railing which guarded the west side of the platform was 31 inches above the platform, and the distance from the top of the railing to the top of the metal plates, which formed a part of the fence, was 5 feet or 5 feet, 1 1/2 inches.

Plaintiff's son, James Twine (hereinafter called Twine), was injured on July 17, 1943, while attempting to catch pigeons on the premises of the grain elevator. Twine, who was then just over sixteen years of age, was employed with other boys by the Burlington Railroad on a section gang which had been working around the grain elevator for two or three days before his injury, cutting weeds and grass. The accident occurred sometimes after three p. m., while Twine was on his way home after he had finished his work day and had checked out at the section gang's shanty some distance south and west of the elevator. When Twine and two other members of the gang (Nooner and Cruce) neared the elevator one of them suggested that they attempt to catch some pigeons, and in so doing they went down the passageway described above. Twine saw some pigeons fly up over the fence at the far end of the passageway, and he went up the stairway mentioned above, climbed onto the railing guarding the outside of the platform, and in an effort to scare up a pigeon he reached over the metal plates which formed a part of the fence at that point and with his left hand tapped the cover of a lightning arrester inside the substation while his right hand rested on the metal plates which were grounded. As a result, Twine received a severe electric shock and burns which made it necessary to amputate his left arm two inches below the elbow. Twine testified that the top of the metal plates on the fence, as he stood on the railing, reached about up to his chin; that he could see what was on the other side but had to reach over the top of the fence in order to tap the cover of the lightning arrester.

With regard to the pigeons, all of the witnesses who had been around the grain elevator testified that they had seen many pigeons there. Plaintiff's evidence was that at the time Twine was injured, and for several years before that date, pigeons in large numbers gathered on defendant's premises. Several witnesses testified that they saw pigeons inside the substation, on the north fence of the substation, and in the passageway leading to the north fence.

Four teen-age witnesses who lived about a mile south of the elevator testified as plaintiff's witnesses that they had hunted pigeons on defendant's premises prior to the accident when they were around eight to thirteen years of age. All but one of them had stopped the practice prior to the time Twine worked near the elevator. One said he had been there 'a great many times'; another said he had hunted pigeons there 'two or three dozen times.' Two of these witnesses said that Lakey, the defendant's foreman, gave them permission to hunt pigeons and that he said the pigeons were a nuisance. The same witnesses testified they had seen many other boys hunting pigeons on the premises that it was usual for boys to drive the pigeons down the passageway, which formed a trap for them at the far end, so that they could be caught with the hands. Sometimes the boys would stand on the railing on the platform and reach up and take pigeons off the top of the metal plates. The testimony of a former employee of defendant was to the same effect. This witness also said that on numerous occasions...