Opinion
No. 37920.
October 1, 1951.
1. Negligence — doctrine of attractive nuisance — explosives.
Where a boy thirteen years of age picked up a loaded anti-aircraft shell on the unused portion of a public street immediately adjacent to defendant's junk yard to which point he had been attracted by some aeroplane parts which he desired to look at for the purpose of ascertaining whether he would care to purchase some of them for use in making a miniature airplane, the Attractive Nuisance Doctrine is not applicable in an action by him for personal injuries caused by the explosion of the shell, since the facts are that he did not go upon defendant's premises.
2. Trespass — applicability of rule as to wilful injury to trespasser — explosives.
Inasmuch as the boy, in the above stated case, did not go upon the premises of the defendant either as a trespasser or otherwise, the rule which makes a defendant liable to a trespasser only for wilfully or wantonly injuring him, or proximately causing him to be injured, is not applicable.
3. Appeal — judgment overwhelmingly sustained on one ground — harmless error.
Where a junk dealer, in handling scrap iron, automobile parts, airplane parts, anti-aircraft shells and other kinds of junk, permitted loaded shells to be placed and to remain on unused portion of the street next adjacent to his junk yard, the question whether he was guilty of common law negligence was properly submitted to the jury, and when on that issue the negligence is established by the overwhelming weight of the evidence, the submission to the jury of the further issue whether the defendant was liable under the Attractive Nuisance Doctrine did not prejudice the rights of the defendant to the extent that it could reasonably be said that a different result would have been reached if the issue of liability on common law negligence alone had been submitted.
4. Personal property — abandonment, when may be assumed, as against wrongful taking.
In the case outlined in the foregoing headnotes the injured child was not to be denied a recovery on the ground that he was guilty of a wilful wrong in removing the shell from the place on the street where he found it and in taking it to his home, since he was entitled to assume that the shell had been thrown on the street and abandoned by the owner.
5. Explosives — negligence — duty to keep explosives away from danger.
Where in the case above outlined the defendant junk dealer admitted that he knew that the anti-aircraft shells brought to his yard from a military camp were dangerous and that up to a few months prior to the injury he had an employee whose duty it was to see that such shells were done away with, the jury was entitled to find that he was negligent in not continuing to see that these shells were not left exposed, either on his premises or in close proximity thereto through any fault of his own.
Headnotes as approved by McGehee, C.J.
APPEAL from the circuit court of Forrest County; F.B. COLLINS, Judge.
T.J. Wills with Barnett, Jones Montgomery, for appellant.
I. The shell which exploded a long distance away from the junk yard in question did not, in the first instance, attract the appellee to the junk yard. Sec. 2242 Code 1942; Esquibel, etc. v. The City and County of Denver, Colorado, S.C., June, 1944, 10 Neg. Cases, 1119; Vincent, et al. v. Barnhill, 34 So.2d 363; 65 C.J.S. pp. 453, 463.
II. The parties were in pari delicto. Downing v. City of Jackson, 24 So.2d 611; Secs. 8249, 8379 Code 1942; Western Union Telegraph Co. v. McLaurin, 108 Miss. 273, 66 So. 739, 740, L.R.A. 1915C, 487; Judge Cooley on Torts; Capps, et al. v. Postal Telegraph-Cable Co., (Miss.), 19 So.2d 491; Labatt's Master and Servant, 2nd Ed., Vol. 3, Sec. 1278, p. 3569; Sec. 8277 Code 1942.
III. The plaintiff was guilty of contributory negligence. Cochran v. Peeler, 47 So.2d 806; Triplett v. State, 169 Miss. 306, 152 So. 881; Peters et al. v. Town of Rushton, 167 So. 491; Salter v. Deweese-Gammill Lumber Co., (Miss.) 102 So. 269.
IV. The mere fact that a shell was on or near defendant's premises was not the proximate cause of the injury. 65 C.J.S., p. 649.
V. The question of negligence can rarely be said to turn on a single element of negligence. Neversweat Min. Co. v. Ramsey, 84 Okla. 128, 202 P. 787.
VI. The damages were excessive and the verdict of the jury clearly was the result of passion, prejudice or corruption on the part of the jury. St. Louis-San Francisco Ry. Co. v. Bridges, 131 So. 99; Biedenharn Candy Co. v. Moore, (Miss.), 186 So. 628; Mississippi Power Light Co. v. McCormick, 166 So. 534; Grenada Dam Constructors v. Patterson, 48 So.2d 480; Fore v. I.C.R.R. Co., 160 So. 903; Universal Trucking Loading Co. v. Taylor, et al., 172 So. 756; Flournoy v. Brown, 26 So.2d 351; S.H. Kress Co. v. Sharp, 126 So. 655; 1 Thomp. on Trials, (2d Ed.), Sec. 859.
VII. Comparison of verdicts. Florida Dairies Co. v. Rogers, 119 Fla. 451, 161 So. 85; Atl. Peninsula Holding Co. v. Oenbrink, 133 Fla. 325, 182 So. 812; Lea v. Lentwood E. Ry. Co., 121 La. 471, 46 So. 596; Sutton v. Champagne, 141 La. 469, 75 So. 209; Ledet v. Lockport Light Power Co., 15 La. App. 426, 132 So. 272; Gulf Ref. Co. v. Miller, 153 Miss. 741, 121 So. 482; Avery v. Collins, (Miss.), 157 So. 695; Meridian Amusement Concession Co. v. Roberson, (Miss.), 193 So. 335; Stevenson v. Robinson, 37 So.2d 568.
VIII. The right to damages in general. 25 C.J.S., Sec. 3, p. 461; Press v. Davis, (Texas), 118 S.W.2d 982, 993; Quinn v. Press, 140 S.W.2d 438.
IX. Value of precedents. Morris v. Hines, 107 Neb. 788, 187 N.W. 130; P. Lorillard Co. v. Clay, 104 S.E. 384; E.I. Dupont de Nemours v. Taylor, 124 Vs. 762, 98 S.E. 866.
X. There was not enough damage proved with reasonable certainty to support the verdict. Fredrick Smith Enterprise Co., Inc. v. Lucas, 36 So.2d 812, 816; Chicago Railway Co. v. Scurr, 59 Miss. 456; Bounds, et al. v. Watts, 121 So. 804; Taggart, et al. v. Peterson, 181 So. 137; 8 R.C.L., Sec. 136, p. 592; Teche Lines, Inc. v. Pope, 166 So. 539.
XI. The verdict is not responsive to the evidence.
XII. Plaintiff did not prove his case by a preponderance of the evidence. Smith v. Gulf M. N.R. Co., 129 So. 601; D.L. Fair Lumber Co. v. Federal Land Bank of New Orleans, 128 So. 733; 32 C.J.S., Sec. (b), p. 1053; Gibson v. People, 44 Col. 600, 99 P. 333. J.T. Wills with J.E. Franklin, also for appellant.
The turntable cases or the attractive nuisance cases have no application to the case made by this record. Vol. 65 C.J.S., Sec. 29 (4) 462, Sec. 29 (5) 463, Sec. 29 (9) 468; Vincent v. Barnhill, 203 Miss. 470, 34 So.2d 363; Bonhomie H.S. Ry. Co. v. Hinton, 155 Miss. 173, 124 So. 271; Esquible v. City and County of Denver, 151 P.2d 757; 20 R.C.L. Secs. 70, 79; Tony Matljivich v. Dolese Sheppard Co., 261 Ill. 498; Capp, et al. v. City of St. Louis, 251 Mo. 354; Vincani, et ux. v. Boyse Payette Co., 44 P.2d 1103; Weinberg v. Hartman, 65 A.2d 508; Jones v. L. N.R. Co., 179 S.W.2d 874; Monis v. City of Britton, 279 N.W. 531; Salt River Valley Water Users' Ass'n v. Comption, 11 P.2d 839; Maxckan v. City of Corinth, 155 Miss. 588, 124 So. 795; 38 Am. Jur., Secs. 146. 811, 826; United Zinc Chemical Co. v. Britt, 66 (N.S.) L.Ed. 615; Drew v. Lott, 182 N.E. 547; Shulte v. Willow River Power Co., 209 N.W. 629; Harriman v. Incorporated Town of Afton, 281 N.W. 183; Columbus Min. Co. v. Napier's Adm., 40 S.W.2d 285; Lipscomb v. Cincinnati N. CST Ry. Co., et al, 39 S.W.2d 991; Mackey v. Vicksburg, 64 Miss. 777, 2 So. 178; Temple v. McComb City, 89 Miss. 1, 42 So. 874; Salter v. Deweese-Gammill, 137 Miss. 229, 102 So. 268; Lucas v. Hammond, 150 Miss. 369, 116 So. 536; Hercules Powder Co. v. Wolf, 145 Miss. 388, 110 So. 842; Hamblin v. Gano, 115 Miss. 211, 76 So. 633; McTighe v. Johnson, 144 Miss. 882, 75 So. 600; Little v. James McCord Co., 151 S.W. 835; 22 Am. Jur. Sec. 142.
Conclusion. The record shows that the case was tried under the attractive nuisance doctrine and no other, in fact eight of the instructions requested by the appellee and granted were based upon the attractive nuisance doctrine and to hold that the opinion can stand on common law negligence — that the appellant was a tort feasor would be to hold that the eight instructions obtained by the appellee predicated upon different phases of the attractive nuisance doctrine, would be misleading to the jury and for that reason, if no other, the case must be reversed. We respectfully submit to the Court that this case cannot stand on any theory; that the eight instructions given on the attractive nuisance doctrine would reverse the case if the common law rule of negligence was applied, that if the attractive nuisance doctrine applies so as to make right and correct the eight instructions given on the attractive nuisance doctrine, then the decision common law negligence cannot stand.
Homer W. Pittman and Joe R. King, for appellee.
I. Combined attractions and proximate cause of injury. 38 Am. Jur. 153; 45 C.J. 766; 65 C.J.S. 463; Union Light, Heat, and Power Co. v. Lunsford, 225 S.W. 741; Thompson v. Alexander City Cotton Mills Co., 190 Ala. 184, 191, 67 So. 407, Ann. Cas. 1917A 721; Ft. Wayne, etc. Tract. Co. v. Stark, 74 Ind. 669, 127 N.E. 460; Sexton v. Noll Constr. Co., 108 S.C. 516, 95 S.E. 129; Johnson v. Atlas Supply Co., (Texas), 183 S.W. 31-33; Consolidated Electric Light, etc., Co. v. Healy, 65 Kan. 798, 70 P. 884; Alabama By-Products Corp. v. Cosby, (Ala.), 115 So. 31, 35; Eastburn v. Levin, 113 Fd. Rep. 2d 176; Thompson on Negligence, Sec. 1030; Lucas case, 116 So. 536.
II. Continuing under combined attractions, where dangerous instrumentality left in street right of way. 45 C.J., Sec. 171, pp. 769, 770, 771; 38 Am. Jur. 154; Consolidated Electric Light, etc., Co. v. Healy, 65 Kan. 798, 70 P. 884; 36 A.L.R. 148; Indianapolis v. Emmelman, 108 Ind. 530, 58 Am. Rep. 65, 9 N.E. 155; Kressine v. Jamesville Traction Co., 175 Wis. 192, 184 N.W. 777; Busse v. Rogers, 120 Wis. 443, 64 L.R.A. 183, 98 N.W. 219, 15 Am. Neg. Rep. 743; Kelly v. Southern Wisconsin R. Co., 152 Wis. 328, 44 L.R.A. (N.S.) 487, 140 N.W. 60; Harris v. Eastern Wisconsin R. Light Co., 152 Wis. 627, 45 L.R.A. (N.S.) 1058, 140 N.W. 288; Kreiner v. Straubmuller, 30 Pa. 609; Snidersich v. Minnesota Utilities Co., 155 Minn. 293, 193 N.W. 449; Charles v. El Paso Electric R. Co., (Texas), 254 S.W. 1094; Robertson v. Rockland Light P. Co., 187 App. Div. 720, 176 N.Y. Supp. 281; Doyle v. Chattanooga, 128 Tenn. 433, 162 S.W. 997, Ann. Cas. 1915C 283, 4 N.C.C.A. 167; 65 C.J.S. 460.
III. Child under fourteen years considered to be of tender age. Central of Georgia R. Co. v. Robins, 95 So. 367, 6 Ala. 209; Lovell v. DeBardeleben C. I. Co., 90 Ala. 13, 7 So. 756; B.R.L. P. Co. v. Landrum, 153 Ala. 192, 45 So. 198, 127 Am. St. Rep. 25; B. A. Ry. Co. v. Mattison, 166 Ala. 602, 52 So. 49; Cedar Creek Store Co. v. Steadham, 187 Ala. 622, 65 So. 984; Indian. Ref'g Co. v. Marcrum, 205 Ala. 500, 88 So. 445; So. Exp. Co. v. Roseman, 206 Ala. 681, 91 So. 612; Pierce v. United Gas and E. Co., 161 Cal. 176, 118 P. 700; Union Light, Heat Power Co. v. Lunsford, 225 S.W. 741; Vonalmen's Adm'r. v. City of Louisville, 180 Ky. 441, 202 S.W. 880; McMillin's Adm'r v. Bourbon Stock Yards Co., 179 Ky. 140, 200 S.W. 328, L.R.A. 1918C, 682; Lyttle's Adm'r. v. Harlan Town Coal Co., 167 Ky. 345, 180 S.W. 519; Miller v. Chandler, 168 Ky. 606, 182 S.W. 833; Myer v. Union Light, Heat Power Co., 151 Ky. 332, 151 S.W. 941, 43 L.R.A. (N.S.) 136; Bransom v. Labrot, 81 Ky. 638, 50 Am. Rep. 193; Union Pacific R. Co. v. McDonald, 152 U.S. 262, 14 Sup. Ct. 619, 38 L.Ed. 434; Westbrook v. Mobile O.R. Co., 66 Miss. 560, 6 So. 321; W.P. Biggs, Adm'r., etc., of Leigh Walter Howell, Deceased v. Consolidated Barb-Wire Co., 44 L.R.A. 655.
IV. Alleged erroneous instruction on attractive nuisance doctrine held not prejudicial where attractive nuisance doctrine was inapplicable. 5 C.J.S. Appeal and Error Sec. 1764; Meredith v. Fehr, et al., 90 S.W.2d 1021; Pascagoula St. Ry. Power Co. v. McEachern, 69 So. 185; Gulf Ship Island Railroad Co. v. Boone, 82 So. 335; Meridian Sanitorium v. Scruggs, 83 So. 533.
V. Verdict of jury supported fully by competent evidence. St. Louis-San Francisco R.R. Co. v. Dyson, 43 So.2d 95; Gulfport, M. N.R. Co. v. Kelly, 171 So. 883; Alabama and V.R. Co. v. Dennis, 91 So. 4; Ingalls Ship Building Corporation v. Trehern, 155 F.2d 202; Laurel Light and Ry. Co. v. Jones, 137 Miss. 143, 102 So. 1.
Quitman Ross, also for appellee.
In answer to the question whether if it was error to the jury the issue of liability on the theory of the attractive nuisance was the submission of such issue prejudicial to the defendant, cited the following cases:
W.T. Rawleigh Co. v. Foxworth, 194 Miss. 205, 11 So.2d 919; Hathaway v. North, 190 Miss. 697, 1 So.2d 490; Stamps v. Frost, 174 Miss. 325, 164 So. 584; Westbrook v. Corneil, 199 Miss. 118, 23 So.2d 753; Gilmore-Pucket Lbr. Co. v. Bank of Tupelo, 177 Miss. 152, 170 So. 682; Robertshaw, trustees v. The Columbus and Greenville Ry. Co., 185 Miss. 717, 188 So. 308; Milner Hotels, Inc., et al. v. Dougherty, 195 Miss. 718, 15 So.2d 358; Clarke v. Carpenter, 201 Miss. 436, 29 So.2d 215; Southeastern Express Co. v. Namie, 182 Miss. 447, 181 So. 515; Mississippi Power Light Co. v. Pitts, 181 Miss. 344, 179 So. 363.
ON SUGGESTION OF ERROR
On April 16, 1951, we affirmed a judgment for $10,000 in favor of the appellee herein, Richard Cleveland, a minor, for damages sustained by him because of the explosion of a forty millimeter anti-aircraft shell which he picked up on the unused portion of a public street adjacent to the junk yard of the appellant, Shemper Company, at Hattiesburg, Mississippi, and the presence of which anti-aircraft shell, along with numerous others, were on the street right of way due to the negligence of said operator of the junk yard.
On May 16, 1951, this Suggestion of Error was filed, and after a consideration of the briefs filed in support thereof, we concluded to call for reply briefs thereto under a memorandum mailed to the attorneys for the appellee on July 10, 1951, to be directed in particular (1) to the question of whether or not it was error for the trial court to have submitted the Attractive Nuisance Doctrine to the jury, together with the issue of whether or not the appellant was guilty of actionable negligence as a tort feasor in allowing these dangerous explosives to be thrown into the unused portion of the public street adjacent to the junk yard, where, according to the proof, children had been accustomed to play; and (2) whether or not, assuming that it was error to submit to the jury the issue of liability on the theory of the Attractive Nuisance Doctrine, it was prejudicial to such an extent as to have affected the result of the trial.
We are indebted to the several attorneys of the respective parties for the very helpful and exhaustive briefs that have been submitted on these and other phases of the case.
A majority of the Judges are of the opinion that (Hn 1) the Attractive Nuisance Doctrine is inapplicable to the case for the reason that the plaintiff, a boy thirteen years of age, did not go upon the premises of the defendant in finding and picking up the loaded shell on the street right of way but was merely attracted to a point nearby the property line by some aeroplane parts which he desired to look at for the purpose of ascertaining whether or not he would desire to purchase the same for use in making a miniature aeroplane, and when he reached a point near enough to look at the aeroplane parts he found several little piles of these discarded anti-aircraft loaded shells on the street right of way, and for the presence of which shells, the jury was warranted in concluding, from the preponderance of the evidence, that the defendant was responsible. We all agree that (Hn 2) the plaintiff not being on the premises of the defendant, either as a trespasser or otherwise, at the time he found and picked up the shell, which later exploded when he threw it to the ground, the rule which makes a defendant liable to a trespasser only for willfully or wantonly injuring him, or proximately causing him to be injured, is not applicable under the facts of this case.
(Hn 3) All of the Judges likewise agree that the jury was warranted in finding from the overwhelming weight of the evidence that the defendant was guilty of actionable negligence in allowing these loaded shells to become placed and to remain on the street right of way. And the declaration contained an allegation of common law negligence, aside from the allegation that the plaintiff was attracted to the junk yard by the aeroplane parts, etc. The issue as to whether or not the defendant was guilty of common law negligence, and of being a tort feasor under all of the facts in the case, was submitted to the jury under proper instructions, and since such issue was so thoroughly established by the overwhelming weight of the evidence, we have concluded that the submission of the further issue as to whether the defendant was also liable under the Attractive Nuisance Doctrine did not prejudice the rights of the defendant to such an extent as it could reasonably be said that the submission of such issue to the jury under the instructions had the effect of producing a different result than would have been reached if the issue of liability on the theory of common law negligence alone had been submitted under the principle announced in the cases of Hercules Powder Company v. Wolf, 145 Miss. 388, 110 So. 842; McTighe, Hughey McTighe v. Johnson, 114 Miss. 862, 75 So. 600; 25 C.J. 186; 35 C.J.S., Explosives, Sec. 5, and other authorities.
It should be observed that the authorities are somewhat in conflict as to whether or not an injured plaintiff must have been attracted to a place in question by the instrumentality by reason of which he sustained his injury; and that the trend of the decisions in this Court has been rather to limit than to extend the Attractive Nuisance Doctrine. (Hn 4) And we are unable to agree with the argument on behalf of the appellant that the plaintiff should be denied a recovery in this case on the ground that he was either a trespasser on the premises of the defendant, or was guilty of a willful wrong in removing the shell from the pace on the right of way where it was found and in taking it to his home. The plaintiff was entitled to assume that these shells had been thrown onto the right of way and abandoned by their owner, and was not guilty of any willful wrong or criminal offense in picking up the shells on the street and carrying them away.
(Hn 5) Finally, it should be said that the operator of the junk yard admitted that he knew that these shells were dangerous and the proof shows that up until the month of May prior to the plaintiff's injury in September he had an employee whose duty it was to see to it that these shells which were brought along with other junk from Camp Shelby were done away with, and the jury was entitled to find from the evidence that the defendant was negligent in not continuing the practice of seeing to it that these shells were not left exposed, either on his premises or in close proximity thereto, through any fault of his own.
For the reasons hereinbefore set forth, we have concluded that the Court should adhere to the former decision rendered herein, and that the Suggestion of Error should therefore be overruled.
Suggestion of error overruled.