United Zinc & Chemical Co. v. Britt
| Decision Date | 13 April 1920 |
| Docket Number | 5430. |
| Citation | 264 F. 785 |
| Parties | UNITED ZINC & CHEMICAL CO. v. BRITT et ux. [1] |
| Court | U.S. Court of Appeals — Eighth Circuit |
Henry D. Ashley, of Kansas City, Mo. (William S. Gilbert, of Kansas City, Mo., on the brief), for plaintiff in error.
F. J Oyler, of Iola, Kan. (Fred Robertson, of Kansas City, Kan on the brief), for defendants in error.
Before HOOK and STONE, Circuit Judges, and LEWIS, District Judge.
The defendants in error, Van and Susie Britt, residents and citizens of Missouri, who were plaintiffs below, recovered a judgment against plaintiff in error for their damages on account of the deaths of their two sons Edward and Allen eight and eleven years old, which occurred in July, 1916. Plaintiff in error owned and operated, at Iola, Kansas, a plant at which it manufactured sulphuric acid and zinc spelter. It owned and still owns the tract (about 20 acres) in the outskirts of the town on which the buildings were situated, but in 1910 it tore them down, moved the wreckage and machinery away, and since then has not occupied or used the land for any purpose. There was an enclosure around the tract, but when operations ceased and the plant was dismantled it fell away, so that those passing were free to go at will, and made footpaths across it. There was a basement containing acid tanks with lead pipes in and out under what was known as the tower building, and when it was torn down chemical refuse was thrown in the open basement. As the tanks and pipes were taken out some sulphuric acid got into the basement. Other chemical refuse was left about on the surface, and the old basement later became a pool of clear water from surface drainage, strongly impregnated with sulphuric acid and zinc sulphate. In July, 1916, Van and Susie Britt, traveling overland with their sons Edward and Allen, camped for a few days not far from the pool. The boys, in passing it one afternoon, responded to boyish impulses and went in bathing. In a short time after going in the younger was dead in the pool, the older was taken out, removed to a hospital and died two days later 'from swelling of the bronchial tubes and gastrointestinal irritation; irritation of the stomach and bowels, which produced an inflammation of the bowels and stomach. ' He had colicky pains, vomiting and gasping for breath. Expert testimony attributed both deaths to the poisonous chemicals in the water which had been taken internally. The water, when so taken, caused an immediate burning in the throat and choking; and applied outwardly it caused an itching and slight sense of burning.
The complaint was bottomed upon a local statute giving a right to recovery 'when the death of one is caused by the wrongful act or omission of another. ' It charged that defendant carelessly and negligently left the pool of poisonous water open and exposed, and without enclosure, barrier, danger signals or warnings of any kind about it, well knowing, or by the exercise of reasonable care should have known, its dangerous character; that it maintained the poisonous pool and failed to fill it up.
The answer, after admitting ownership of the land in defendant, operation of its plant thereon from 1902 to September, 1910, the tearing down and removal of the buildings and machinery in the latter month, denied all other allegations.
At the close of the evidence the court refused to instruct a verdict for the defendant and submitted the case; instructing the jury that defendant had a right to maintain a pond of water on its premises, that if the water in the pool had not been poisonous but had been pure water and the children had gone into it in that condition and been drowned plaintiffs could not recover; that, on the other hand, if the pool was attractive to boyish instinct and impulses as a place to go in bathing, and yielding they went in thus allured and their deaths resulted from the poison in the water, then the jury might find for plaintiffs; that it was immaterial whether they saw or could see the pool before they entered upon the tract; that if they had been of mature years they would have been trespassers and subject to a different rule, but that the law does not hold children of immature years to the same accountability as trespassers as it does adult persons.
There are many assignments of error, chiefly as to instructions given and refusal to give others, but they all come back to the contention, pressed on argument and developed in brief, of nonliability; and it may be conceded that there is good ground for debate, as the elaborate and able brief for plaintiff in error demonstrates. There is conflict in the cases as to the extent and under what conditions the principle sic utere tuo, etc., may be carried against a landowner as a basis for liability on account of injuries to children resulting from dangerous attractions which he places upon or suffers to continue on his premises. There is less hesitation in its application against him where the thing complained of is, as here, put to no useful, ornamental or other purpose of enjoyment. It is also urged as error that the weight of the evidence disclosed that the pool could not have been seen by one off the premises standing in the nearest highway, or on the boundary line, or in the paths, and that the court told the jury that it was immaterial whether the boys saw it before they went upon the tract or after they were on it. In this the court doubtless had in mind two things, first, the undisputed fact that the public passed over it at will, so much so as to beat footpaths across it, the further fact of its nearness to the homes of families, and second, the principle of law applied in cases like this that children of tender years are not classed with idlers, licensees or trespassers. 2 Shearman & Redfield on Negligence, Sec. 705. In Pekin v. McMahon, 154 Ill. 141, 39 N.E. 484, 27 L.R.A. 206, 45 Am.St.Rep. 114, it is said:
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