Opinion
7 Div. 912.
January 16, 1930. Rehearing Denied April 3, 1930.
Appeal from Circuit Court, Talladega County; R. B. Carr, Judge.
Riddle Riddle, of Talladega, for appellant.
One who maintains dangerous instrumentalities on his premises, easily accessible to children and of a character likely to attract them in play, or permits dangerous conditions to remain thereon with the knowledge that children are in the habit of resorting thereto for amusement, and who fails to exercise ordinary care to prevent children from playing therewith or resorting thereto, is liable to a child who is injured thereby and who did not know and appreciate the dangerous condition or was too young to be charged with such knowledge. Lucas v. Hammond, 150 Miss. 369, 116 So. 536, 60 A.L.R. 1427; 20 R. C. L. 80, 88; Mattson v. M. N.W. R. Co., 95 Minn. 477, 104 N.W. 443, 70 L.R.A. 503, 111 Am. St. Rep. 483, 5 Ann. Cas. 498; 8 Thompson, Negligence (White's Sup.) § 1031; Mackey v. Vicksburg, 64 Miss. 777, 2 So. 178; Vicksburg v. McLain, 88 Ala. 329, 6 So. 744. The landowner is liable in damages in the case of children injured by dangerous things suffered to exist unguarded on his premises, where they are accustomed to come with or without license. Thompson v. Alex. City C. M. Co., 190 Ala. 191, 67 So. 407, Ann. Cas. 1917A, 721; Gandy v. Copeland, 204 Ala. 366, 86 So. 3; Ala. By-Products Corp. v. Cosby, 217 Ala. 144, 115 So. 31. Whether premises are sufficiently attractive to entice children into danger, and whether defendant was negligent in the matter of guarding same, are matters to be determined by the jury. 29 Cyc. 637, 638; A. G. S. v. Crocker, 131 Ala. 584, 31 So. 561.
Knox, Dixon, Sims Dixon, of Talladega, for appellee.
A child even of tender years may be a trespasser or a mere licensee, and in such event the owner and operator of a cotton seed oil mill is no more bound to keep a lookout for such child or to keep its premises safe for him than for an adult. A. G. S. v. Moorer, 116 Ala. 642, 22 So. 900; Southern R. Co. v. Forrister, 158 Ala. 477, 48 So. 69; N.C. St. L. v. Harris, 142 Ala. 249, 37 So. 794, 110 Am. St. Rep. 29. The only duty owed him by the landowner is that traps or pitfalls may not be set in his way or he be wantonly injured. Gandy v. Copeland, 204 Ala. 366, 86 So. 3; Eades v. Am. C. I. P. Co., 208 Ala. 556, 94 So. 593; Athey v. T. C. I. Co., 191 Ala. 646, 68 So. 154; Thompson v. Alexander City Cotton Mills, 190 Ala. 184, 67 So. 407, Ann. Cas. 1917A, 721; Buchanan v. C., R.I. P. R. Co., 9 La. App. 424, 119 So. 703. It appears from the complaint that the conveyor had been in use in the same place for a number of years, and was of usual and ordinary type, and did not constitute an unusual thing or an unusually attractive thing to children, and that its danger was open and patent, and there is no averment that any child ever played about said conveyor or was injured thereby prior to the alleged injury. The complaint was subject to demurrer. Authorities, supra; Beaumont Iron Works v. Duron (Tex.Civ.App.) 297 S.W. 1075. The doctrine of the turntable cases has been limited to cases where the danger is latent. 20 R. C. L. 86; Abbott v. Ala. Power Co., 214 Ala. 281, 107 So. 811; A. G. S. v. Cummings, 211 Ala. 381, 100 So. 553, 33 A.L.R. 439; Cox v. Ala. Water Co., 216 Ala. 35, 112 So. 352, 53 A.L.R. 1336; Erickson v. Minneapolis, etc., R. Co., 165 Minn. 106, 205 N.W. 889, 45 A.L.R. 973; Smith v. Hines, 212 Ky. 30, 278 S.W. 142, 45 A.L.R. 980.
Plaintiff, a minor of tender years, was injured by contact with a "spiral conveyor" of steel or iron which revolved on the outside of defendant's building, eliminating waste and débris. For the most part plaintiff's complaint rests for recovery upon the doctrine of the so-called "turntable" cases. Sioux City P. Railroad Co. v. Stout, 17 Wall. 657, 21 L.Ed. 745; United Zinc Chemical Co. v. Britt, 258 U.S. 268, 42 S.Ct. 299, 66 L.Ed. 615, 36 A.L.R. 28; Cox v. Ala. Water Co., 216 Ala. 36, 112 So. 352, 355, 53 A.L.R. 1336; Athey v. Tenn. Coal, Iron R. Co., 191 Ala. 646, 68 So. 154, 156.
Without regard to any other consideration, that doctrine is here inapplicable, because the danger of the conveyor was obvious and patent. In the very recent case of Williams v. Bolding, 124 So. 892, 895, this court (following the lead of the authorities generally — 20 R. C. L. 86) held that this doctrine, founded as it is on defendant's superior knowledge of the peril, "is limited in its application to latent dangers, and, where the injury results from perils of obvious and patent character, it is not applicable." Indeed, the cases of Eades v. Am. Cast-Iron Pipe Co., 208 Ala. 556, 94 So. 593, and Athey v. Tenn. Coal, Iron R. Co., supra, are to like effect.
Ante, p. 328.
As to such obvious dangers this court has said that "common experience shows that a reasonable prudence may trust their avoidance to the universal instinct of self-preservation. As for children so little advanced as to be unable to recognize the most patent dangers, their inefficiency cannot be allowed to shift the care of them from their parents to strangers, or impose upon the owners of property a duty and liability where otherwise none would exist." Athey v. Tenn. Coal, Iron R. Co.; Eades v. American Cast-Iron Pipe Co., supra.
Plaintiff insists that count A does not rest upon this doctrine, but is sufficient independently thereof. But, as pointed out in Cox v. Ala. Water Co., supra, defendant is not liable, unless it owes a legal duty which it neglected to perform. The conveyor was on defendant's property. That a child, as well as an adult, may be a trespasser is well settled. So. Rwy. Co. v. Forrister, 158 Ala. 477, 48 So. 69.
The United States Supreme Court in the Britt Case, supra, speaking to this question, said: "Infants have no greater right to go upon other people's land than adults, and the mere fact that they are infants imposes no duty upon landowners to expect them and to prepare for their safety."
And in Cox v. Alabama Water Co., supra, is the following language here pertinent: "To create a legal duty, the person who goes upon the premises of another merely for his own benefit or pleasure must sustain a relation to the owner or his business equivalent to an invitation to come upon the premises."
Plaintiff was a trespasser. Stress is laid by counsel upon the averments that the conveyor was within fifteen feet of a public street, and was in plain view and in close proximity to a public playground where children played. But there is no averment that children were in the habit of going to play where this conveyor was located, and the above-noted averments do not suffice as showing any invitation or license for plaintiff's presence on defendant's property. In support of this count plaintiff relies upon Alabama By-Products Corporation v. Cosby, 217 Ala. 144, 115 So. 31, 35, but the count there considered expressly averred an invitation, and, in treating this count, the language was used that "it is the duty to be reasonably sure that one is not inviting the other into danger." Here there was no invitation either express or implied, and the authorities hereinbefore cited disclose no legal duty resting upon defendant.
We are of the opinion the demurrers were properly sustained, and the judgment of the court below should be here affirmed.
Affirmed.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.