Summary
In W. F. Bradley Lumber Co. v. Crowell (Ala.), 178 So. 66, the holding was that the owner of premises was not liable to an eleven year old boy, who was burned by stepping through the crust formed over a burning sawdust pile, for failure to guard the same, and that the fire concealed by the crust was not an attractive nuisance.
Summary of this case from Tiller v. BaisdenOpinion
3 Div. 790.
October 5, 1937. Rehearing Denied November 9, 1937.
Appeal from Circuit Court, Montgomery County; Walter B. Jones, Judge.
Action for damages for personal injuries by Harry Crowell, Jr., a minor, suing by his next friend, Harry Crowell, Sr., against W. F. Bradley Lumber Company. From a judgment for plaintiff, defendant appeals.
Reversed and remanded.
Certiorari denied by Supreme Court in W. F. Bradley Lumber Co. v. Crowell, 235 Ala. 223, 178 So. 68.
The following is the complaint:
"Count One. The plaintiff, Harry Crowell, Jr., suing by his father and next friend, Harry Crowell, Sr., claims of the defendant the sum of ten thousand and no/100 ($10,000.00) dollars, as damages, for that he avers that on to-wit, the 26th day of March, 1936, the defendant's officers, agents, servants or employes, while acting within the line and scope of their employment, did negligently permit large deposits of sawdust ashes or ashes from other fuels used by the defendant to be deposited in large quantities close to their sawmill, the said ashes containing fire being concealed by a crust or a sand like cover on the top, and dangerous to children, to be and remain upon the premises used and occupied by the defendant East of North Court Street in the City of Montgomery, Montgomery County, Alabama, unguarded and uncovered and in such condition as to be dangerous to children; the plaintiff avers that the defendant knew that children were in the habit of playing in the vicinity and upon the defendant's said premises, and that the defendant's officers, agents, servants and employes, while acting within the line and scope of their employment, either knew or in the exercise of due diligence, should have known, that the said deposit of ashes contained such hot coals as aforesaid, was a place of great danger to the plaintiff who was a minor of eleven years of age; and the plaintiff further avers that on to-wit, March 26, 1936, while the plaintiff was on said premises by implied invitation of said defendant, their officers, agents, servants or employes as such, the plaintiff stepped through the crust or sand like cover into the fire and was severely burned, wherefore, he received personal injuries in this to-wit: He was permanently injured; he was caused to suffer much physical pain and mental anguish.
"And plaintiff says that the burns, as aforesaid, was proximately caused by the negligence of the defendant, their officers, agents, servants and employes, while acting in the line and scope of their employment as aforesaid, wherefore, this suit.
"Count Two. The plaintiff, Harry Crowell, Jr., suing by his father and next friend, Harry Crowell, Sr., claims of the defendant the sum of ten thousand and no/100 ($10,000.00) dollars as damages for that he avers that on to-wit, the 26th day of March, 1936, the defendant's officers, agents, servants or employes, while acting within the line and scope of their employment, did negligently permit large deposits of sawdust ashes or ashes from other fuels used by the defendant while in the business of operating a sawmill, to be deposited in large quantities close to their sawmill, the said ashes containing fire which was not visible to the naked eye, there was no smoke coming from the ash pile visible to the eye; the fire in the said ashes was concealed, and dangerous to children, to be and remain upon the premises used and occupied East or North Court Street by the defendant in the City of Montgomery, Montgomery County, Alabama, unguarded and uncovered, and in such condition as to be dangerous to children, the plaintiff avers that the defendant knew that children were in the habit of resorting to their premises for amusement, and that the defendant's officers, agents, servants and employes, while acting within the line and scope of their employment, knew that the said deposit of ashes contained such hot coals or fire, as aforesaid, was a place of great danger to the plaintiff who is a minor of eleven years of age; and the plaintiff further avers that on to-wit, March 26, 1936, while the plaintiff was on the said premises for amusement, the plaintiff stepped into the said fire and was severely burned, wherefore, he received personal injuries in this, to-wit, his right leg was badly burned and scarred, he was permanently injured, he was caused to suffer much physical pain and mental anguish.
"And the plaintiff says that the burns, as aforesaid, were proximately caused by the negligence of the defendant, their officers, agents, servants, and employes, while acting in the line and scope of their employment, as aforesaid, wherefore, this suit."
The defendant demurred to the complaint, assigning the following grounds:
"1. No duty owing from the defendant to the plaintiff is alleged.
"2. It is not averred how the alleged invitation to be upon the premises at the time of the accident was implied.
"3. No facts or circumstances are averred showing an implied invitation to plaintiff to come upon the defendant's premises at the time and place of the accident.
"4. The averment that 'while the plaintiff was on said premises by implied invitation of said defendant' is a mere conclusion of the pleader.
"5. No facts are alleged to show the plaintiff's status at the time and place of the accident complained of, whether a business guest, licensee, trespasser or otherwise.
"6. For aught averred in the complaint, the plaintiff was a mere trespasser at the time and place of the accident complained of.
"7. No facts are alleged which show any duty owing by the defendant to the plaintiff to exercise due diligence in his behalf, to know plaintiff's connection or possible connection with any danger arising out of the deposit of ashes produced in the operation of defendant's saw-mill."
Rushton, Crenshaw Rushton, of Montgomery, for appellant.
To create a legal duty the person who goes upon the premises of another 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. Cox v. Alabama Water Co., 216 Ala. 35, 112 So. 352, 53 A.L.R. 1336; Sloss I. S. Co. v. Tilson, 141 Ala. 152, 37 So. 427; Lucas v. Hammond, 150 Miss. 369, 116 So. 536, 60 A.L.R. 1427. An invitation to come upon premises cannot be implied from trespasses which have only the merit of repetition, and neither sufferance nor permission nor passive acquiescence is equivalent to an invitation. Cox v. Alabama Water Co., supra; Atlantic C. L. R. Co. v. Carter, 214 Ala. 252, 254, 107 So. 218; Ellison v. Alabama Marble Co., 223 Ala. 371, 136 So. 787. An ash pile, maintained in connection with the ordinary conduct of a manufacturing business, is not an attractive nuisance, supplying by its attractive nature the want of an invitation. Note, 36 A.L.R. 205; Fitzmaurice v. Connecticut R. L. Co., 78 Conn. 406, 62 A. 620, 3 L.R.A., N.S., 149, 112 Am.St.Rep. 159; Smith v. Jacob Dold Packing Co., 82 Mo. App. 9; Radenhausen v. Chicago, R.I. P. R. Co., 205 Iowa 547, 218 N.W. 316; 37 N.C.C.A. 14, note F. For reasons of public policy, machinery operated in a mill is not a nuisance and does not become an attractive nuisance because some child wanders upon the premises to look at it. Montgomery Cotton Mills v. Bowdoin, 4 Ala. App. 314, 58 So. 732; Ford v. Planters' C. O. Co., 220 Ala. 669, 126 So. 866, 867. When it affirmatively appears that it was not the thing which injured the child but something else which attracted the child on the premises, the attractive nuisance doctrine does not apply. There is no causal connection. Holstine v. Director General, 77 Ind. App. 582, 134 N.E. 303; Cobb v. Lowe Mfg. Co., 227 Ala. 456, 150 So. 687, 688; Louisville N. R. Co. v. Sides, 129 Ala. 399, 29 So. 798.
Chas. M. Pinkston, of Montgomery, for appellee.
The attractive nuisance doctrine imposes liability for injuries to children, even though they are technical trespassers, where such injuries are the result of the failure of the owner or person in charge to take proper precautions to prevent injury to children by instrumentalities or conditions which he should, in the exercise of ordinary judgment and prudence, know would normally attract them into unsuspected danger. Expressed invitation or knowledge that a particular person any resort to a place is not essential to liability under this doctrine. Central of Ga. R. Co. v. Robins, 209 Ala. 6, 95 So. 367, 36 A.L.R. 10; Athey v. Tennessee C., I. R. Co., 191 Ala. 646, 68 So. 154; Clover Creamery Co. v. Diehl, 183 Ala. 429, 63 So. 196; Alabama G. S. R. Co. v. Crocker, 131 Ala. 584, 31 So. 561; Williams v. Bolding, 220 Ala. 328, 124 So. 892, 893; Mattson v. Minnesota, etc., R. Co., 95 Minn. 477, 104 N.W. 443, 70 L.R.A. 503, 111 Am.St.Rep. 483, 5 Ann.Cas.498; Dahl v. Valley Dredging Co., 125 Minn. 90, 145 N.W. 796, 52 L.R.A., N.S., 1173; Bryan v. Stewart, 194 Ala. 353, 357, 70 So. 123; Thompson v. Alexander City Cotton Mills Co., 190 Ala. 184, 67 So. 407, Ann.Cas. 1917A, 721; Powers v. Harlow, 53 Mich. 507, 19 N.W. 257, 51 Am.Rep. 154.
Counts 1 and 2 of the complaint and the demurrer of the defendant appear in the reporter's statement.
There was evidence tending to show that children played in the Bradley Lumber Company's field or on "its premises" quite often. The plaintiff was nearly 12 years old and his account of how he was injured is found on page 17 of the record in the following language: "The day I got hurt I was just walking around there. I stepped in that sawdust pile there, or ash pile, or whatever it was. That's where I got burnt. It looked like clay or gray sand to me. I wasn't just sticking my foot in it for the fun of it, or playing with the fire. There wasn't a fire in that ash pile, that I know of. I stepped in the ash pile; I guess it was an ash pile. My foot was burned there. There wasn't a fire in the ash pile that I know of. Must have been coals down in the lower bottom, but wasn't none on top. Wasn't any smoke coming off that ash pile where I stepped in, or any heat coming off of it. I didn't go there and willfully stick my foot in the ash pile. I didn't know it was an ash pile when I walked on there."
The question is whether this concern (appellant) is liable under the attractive nuisance doctrine for injuries sustained by the plaintiff as a result of stepping into the ash pile on its premises at a place where it could not be seen by a child approaching it until the child had already become a trespasser.
We are of the opinion that neither the ash pile described in the complaint nor in the evidence was an instrumentality of a character likely to attract children. Fitzmaurice v. Connecticut R. L. Co., 78 Conn. 406, 62 A. 620, 3 L.R.A., N.S., 149, 112 Am.St.Rep. 159, and a helpful note in 36 A.L.R. 205, where the cases are collated.
A review of the evidence is unnecessary. We have carefully read the record. This court is bound to follow the decisions of the Supreme Court of Alabama. Well-reasoned cases decided by that tribunal bring us to the conclusion that the demurrer to counts 1 and 2 should have been sustained and that the affirmative charge as to each count, requested in writing, should have been given. Cox v. Ala. Water Co., 216 Ala. 35, 112 So. 352, 353, 53 A.L.R. 1336; Ellison v. Ala. Marble Co., 223 Ala. 371, 136 So. 787.
For the errors noted, the judgment appealed from is reversed, and the cause remanded.
Reversed and remanded.