Hall ex rel. Hall v. Missouri & Kansas Telephone Co.

BROAD DUS, P. J. This is a suit for damages for injuries received by plaintiff as tbe alleged result of defendant’s negligence. Tbe plaintiff at tbe time be received bis injuries was an infant five years of age. Tbe petition sets out that tbe defendant was operating and maintaining a telephone line in Kansas City, running north and south between Twenty-third and Twenty-fourth streets and parallel with Mersington avenue and about midway between tbe latter avenue and Cleveland avenue; that on tbe 29th day of June, 1907, tbe defendant was engaged in stretching a cable wire and lead conduit containing wires across poles along its telephone line, for which purpose they used pulleys and a rope strung along tbe top of its poles, which rope ran down by means of said pulleys along the side of said poles to the ground; that one of the said pulleys was fastened to the pole close to the ground; that the end of the rope passed through this pulley to which a horse was hitched; that this pole was standing on vacant unenclosed ground; that the public have been accustomed to pass over this ground, and that children of the neighborhood were accustomed to play there especially near and around said pole, all of which was well known to defendant company, or by the exercise of reasonable diligence could have been so known to defendant; that on the day aforesaid, plaintiff together with his two brothers and another companion, all minors and of tender years, 'who were playing in the vicinity of said poles, were attracted to them by reason of the horse, rope and pulleys; that the defendant through its agents while engaged in stretching said cable and conduit well knew that plaintiff and his companions were standing around and in close proximity to said pole, pulleys and rope; that defendant’s agents negligently and carelessly, and without any signal or warning to plaintiff or to his companions as to the danger and consequences of coming in contact [186] with, said rope and pulley, started the horse which was standing a few feet from the pole, pulling the rope; that plaintiff stood watching the rope coming down the pole and passing through the pulley near the ground when after the horse had gone about one hundred and twenty-five yards, plaintiff without any negligence on his part took hold of the moving rope with his left hand above the pulley, first permitting it to pass through his hand, when suddenly his hand closed on the rope and was drawn into the pulley and permanently injured. When the cause came on for trial defendant oN jected to the introduction of any evidence on the part of plaintiff, for the reason that the petition did not state a cause of action. The court sustained the objection and instructed the jury to return a verdict for the defendant, whereupon plaintiff took a nonsuit with leave to move to set it aside and the jury was discharged. Judgment was entered in favor of defendant which the court refused to set aside and plaintiff appealed. The argument of plaintiff is that: “It is a well recognized and well settled principle of law that persons who leave unguarded dangerous machines or appliances, which are attractive to children where children are wont to play, are held guilty of such negligence as will create a liability for any injury inflicted on such children as are attracted into playing with such machinery, or appliances.” And it is claimed that the case falls within the rule applied to turntables and other similar cases. In Kelley v. Parker Washington Co., 107 Mo. App. 490, this court enunciated the rule that: “It is negligence for the owner to leave dangerous machinery on his premises in a condition likely to cause injury; and a contractor for grading a street who leaves a scraper in the street liable to inflict injury on children attracted thereby, is guilty of negligence.” “The act of [187] a gas company in causing gas pipes to be piled on sloping ground in a street without blocking them so as to prevent them rolling, was negligence so as to render it liable for injuries to a child caused by the rolling of the pipes, although the pipes were put in motion by other children playing upon them, where the evidence showed children were in habit of playing on that street and the pipe was so piled as to be easily put in. motion.” [O’Hara v. Gas Light Co., 131 Mo. App. 428.] Where although, the contrivance was not dangerous to persons of full understanding yet where its construction and movement was likely to excite a small child’s curiosity and allure him to thrust his hand into a dangerous place, it was a question whether defendant should have anticipated such an incident, was one for the jury. [Hillerbrand v. May Mercantile Co., 141 Mo. App. 122.] It is negligence on the part of a railroad company to omit to secure its turntables so that children cannot revolve them. [Nagle v. Railroad, 75 Mo. l. c. 659.] In Kelley v. Parker Washington, and O’Hara v. Co., supra, the dangerous instrumentalities were left unguarded and improperly secured in public streets where children had the right and were likely to go, and in that respect different from this case. In Hillerbrand v. May Mercantile Co., the child was injured in a store where he had accompanied his mother who was there on business. The court therefore considered that he was there by invitation. These two cases are clearly distinguished from the turntable and kindred cases. It may be inferred from the allegation of the petition that defendant was a licensee on the vacant lot at the time it was engaged in constructing its telephone line and that plaintiff and his companions were mere trespassers. In such cases the owner owes no duty to [188] the trespasser except not to injure him wantonly. [Witte v. Stifel, 126 Mo. 295.] “Parties entering such private premises without invitation are trespassers whether young or old, and the proprietor owes them no duty save not to injure negligently after discovering them.” [Smith v. Dold Packing Co., 82 Mo. App. 9.] In these two cases it is also held that the doctrine in the turntable cases is not to be extended, and its cor-is moreover questioned. This case is distinguished from the turntable and kindred cases in the most important particulars. In the first place as has been said it was not a dangerous contrivance left unguarded, calculated to attract the curiosity of children. The cause of action is not predicated upon the theory that it was such, but that the injury was the result of defendant’s negligence in not warning plaintiff that it was going to be put in operation. Such is the sum and substance of the alleged negligence. Such being the case did defendant owe plaintiff any further duty, he being uninvited and a trespasser, than not to injure him wantonly as said in Witte v. Stifel, supra; or not to injure him negligently, in the words used in Smith v. Dold Packing Co., supra? It is not contended that defendant acted wantonly but negligently. Answering for the sake of the argument, only, that defendant is to be held to the exercise of ordinary care * we~db not see that plaintiff has made out a “case. The I work being carried on in the usual and ordinary man-1 ner ancf with care, the plaintiff is forced to rely solely I upon the ground that notwithstanding such was the f case it became the duty of. defendant to anticipate that some child might possibly catch hold of the rope so as to draw his hand against the pulley through which it was passing and thereby get injured. Had we not had this example before us we could scarcely imagine how any one could have been injured in that manner. And at most it may be characterized as a mishap. It [189] could not have been reasonably anticipated or anticipated as to that matter at all. In order to constitute negligence of any kind there must have been something in the action of the plaintiff indicating that he was going to put himself in peri] in some way or another, and the defendant failed to save him from danger, which it could have done by the exercise of ordinary diligence. Plaintiff’s argument in effect is that plaintiff was in a position of peril while the work was going on and that defendant ought to have notified him of danger. But he was not so in peril, because the operation was not dangerous to bystanders and to have anticipated that one would or could even though a child, get injured would require not only the exercise of the highest degree of care, but a challenge to prescience itself. The court was clearly right and the cause is affirmed. All concur.