Opinion
38723.
DECIDED APRIL 4, 1961.
Action for damages. Walker City Court. Before Judge McClure.
Frank M. Gleason, for plaintiff in error.
Goins, Gammon Baker, Langford Stolz, contra.
1. A pickup truck with a hook and chain dangling from its end, parked on the premises of the defendant, is not an attractive nuisance and does not come within the "turntable" doctrine as applied in this jurisdiction.
2. The attractive nuisance or "turntable" doctrine will not be extended.
DECIDED APRIL 4, 1961.
The plaintiff brought an action in tort for damages against Burman Cox, Ray Whaley, d/b/a O. K. Rubber Welders, and B. F. Goodrich Co. The petition charged that the defendant Cox was an employee and agent of the defendant Whaley and at the same time was also the agent and employee of the defendant B. F. Goodrich Co., and was acting within the scope of his employment at the time when the plaintiff received his injury.
The petition charged that on Sunday, August 16, 1959, the defendant Cox was driving a 1950 model Ford pickup truck owned by the defendant Whaley, and that Cox had driven the pickup truck to his home and parked it in the yard about five o'clock in the afternoon, leaving the truck unattended in the front yard on private property occupied by him as a home. It is alleged that Cox left the truck unattended in his front yard, allowed a chain 10 inches in length with a hook fastened on the end of it with a sharp point to remain dangling from its rear, failed to place the hook in the slot on the side of the pickup truck where it should have been placed, and that he knew the chain and hook were dangling when he left the vehicle to go into his house. It was further alleged that Cox permitted the infant plaintiff, his own children, and other children in and about the community to play around the truck and to climb on and off it whenever they desired. The petition goes on to charge that Cox maintained an attractive nuisance by leaving the truck unguarded on his premises, and that he was negligent in failing to take precautions against the mischief likely to result from his failure to replace the suspended hook and chain in the slot on the side of the pickup truck and in leaving the sharp hook suspended on a chain dangling from the rear end of the truck, and that this negligence constituted the maintenance of an attractive nuisance. It was also alleged that the suspended sharp hook on the chain was a dangerous instrumentality "dangling from the rear end of the truck where the children played." The substance of the allegations of the petition is that the pickup truck with the suspended chain and hook was an attractive nuisance which attracted children in the community. The petition set forth injuries to the plaintiff who, while climbing up the side and rear of the truck near the tail gate and then sliding from the body of the truck to the ground, was injured when the hook caught inside his mouth, penetrating completely through his face.
The defendant B. F. Goodrich Co. filed a general demurrer to the petition on the ground that it failed to state a cause of action. This demurrer was sustained by the trial judge, to which judgment the plaintiff excepted.
The issue raised by this appeal is whether a 10 inch chain with a sharp pointed hook at its extremity dangling from the rear of a pickup truck properly parked on the premises of one of the defendants, is an attractive nuisance to children of tender years.
The attractive nuisance doctrine was developed for the benefit of children coming upon property even though trespassing. It has now been accepted in a great majority of the jurisdictions of the United States. 38 Am. Jur. 802, Negligence, § 142. See Martin v. Seaboard Air Line R. Co., 101 Ga. App. 819 ( 115 S.E.2d 248). Shortly after the origin of the doctrine in the case of Sioux City Pac. R. Co. v. Stout, 17 Wall. (U.S.) 657, 21 L. Ed. 745, the Georgia Supreme Court adopted it in Ferguson v. Columbus Rome Ry., 75 Ga. 637, s. c., 77 Ga. 102. However, both the Supreme Court and the Court of Appeals of this State have been reluctant to extend the doctrine beyond its restricted application to situations in which the dangerous instrument is found to be one of actual and compelling attraction for children. Atlantic Coast Line R. Co. v. O'Neal, 180 Ga. 153 ( 178 S.E. 451); Atlantic Coast Line R. Co. v. Corbett, 150 Ga. 747 ( 105 S.E. 358); Macon, Dublin c. R. Co. v. Jordan, 34 Ga. App. 350 ( 129 S.E. 443); Seaboard Air-Line Ry. v. Young, 20 Ga. App. 291 ( 93 S.E. 29); Martin v. Seaboard Air Line R. Co., 101 Ga. App. 819 ( 115 S.E.2d 248).
In Brown v. Bone, 85 Ga. App. 22 ( 68 S.E.2d 190), the plaintiff, a child five years of age, was injured by the soil pan of a bulldozer falling on him when playing with other children; the defendant had parked or stored the bulldozer in a statical condition, with the soil pan suspended in the air instead of resting on the ground; and the children were playing around and on the bulldozer in the presence of the defendant and in full view of and with the knowledge and consent of the defendant. There the petition charged that while the plaintiff was playing directly under the suspended pan, the pan dropped upon him without warning, causing near fatal and permanent injuries. The judgment of the trial court sustaining the general demurrer was affirmed by this court, which stated that: "Here the evidentiary facts pleaded are not such as to demand the inference that the bulldozer with the pan suspended in the air was a trap creating a dangerous peril, which was the equivalent of wilful and wanton negligence. On the contrary, from the evidentiary facts stated in the petition, the inference may fairly be drawn that the proximate cause of the injury to the plaintiff was the intervening and independent act of the plaintiff himself or his playmates, and that the petition did [not] set out a cause of action against the defendant . . ." The court went on to hold that the doctrine of the turntable cases should not be applied to useful machinery in a statical condition on an unenclosed lot on which the defendant was constructing a house.
The reasoning and the words employed in the Bone case are applicable to the situation presently before us. The truck here and its dangling chain were in a statical condition on the premises of one of the defendants, and without the intervention of third parties neither would have caused injury to anyone. See George v. Continental Wrecking Corp., 101 Ga. App. 538 ( 114 S.E.2d 383).
Clearly, it would violate the frequently reiterated policy of the two appellate courts of this State to extend the doctrine of the turntable cases to a truck parked on the premises of the defendant, even though it had a hook and chain dangling from its end. See the case of Hornsby v. Henry, 68 Ga. App. 171 ( 22 S.E.2d 326), where a lighted match struck by one of two boys playing around an abandoned truck caused an explosion of the gasoline tank which ignited the clothes of one of the boys, resulting in fatal burns.
Assuming without deciding that the plaintiff here was due the duty of ordinary care, we do not find in the petition any charges of actionable negligence. The truck did not, as a matter of law, threaten any unreasonable risk or harm nor any reasonably foreseeable risk of injury to children of tender years. One is not bound to foresee and guard against casualties which are not reasonably to be expected or which would not occur save under exceptional circumstances, or which result from an unexpected act of the person injured. McCrory Stores Corp. v. Ahern, 65 Ga. App. 334, 336 ( 15 S.E.2d 797). It is at least an exceptional circumstance that a two-year-old child should climb into the back of a pickup truck and then fall, impaling himself on a hook at the end of a chain hanging from the back of the truck.
There being neither a factual situation to which the doctrine of the turntable cases would apply, nor any actionable negligence charged otherwise, the trial judge did not err in sustaining a general demurrer to the petition.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.