Hight v. American Bakery Co.

REYNOLDS, P. J. (after stating the facts).- — Beyond all question this case was pleaded by plaintiff and tried on the theory that it was one involving what is sometimes called “the turntable,” or “attractive nuisance,” or “attractive appliance” law. Referring to that doctrine as applied to cases of injuries to children sustained by playing around or resorting to such appliances, and without any desire to go into a full discussion of it or pedantically to go over its history, it is not improper to say that it is generally conceded to have Jhad its origin in the decision by the Court of Queen’s Bench in the case of Lynch v. Nurdin, 1 Adolphus & Ellis (n. s.) 422, also reported 41 E. C. L. 422. It is rather curious to note the various constructions that have been placed upon Lynch v. Nurdin, a decision announced by Lord Den-man, Chief Justice of the Court of Queen’s Bench, in 1841, by the several courts, not only of our country but of Great Britain. Great diversity of opinion has — 451 — been shown as to the exact meaning and scope of that decision. A very full citation and careful analysis of the decisions of the various courts on this much vexed question is in Bottum’s Admr. v. Hawks, 84 Vt. 370, 79 Atl. 858. We refer those desirous of going into this question to the opinion of Judge Powers in that case. Whatever diversity of opinion there may have been in the courts of Great Britain as to what was really decided in Lynch v. Nurdin, so far as the courts, of that country are concerned its> interpretation seems to have been definitely settled by the decision of the House of Lords in Cooke v. Midland Great Western Railway of Ireland, L. R. App. Cases (1909), 229, in which latter case Lynch v. Nurdin is expressly approved and applied in a turntable case. Sioux City & P. R. R. Co. v. Stout, 17 Wall. 657, is the first case in the United States Supreme Court in which the turntable question arose and in which it was recognized in connection with injury to a child, who had played about it. It reached the Supreme Court on error to the circuit court of the district of Nebraska, in which court the case had been tried before Judges Dillon and Dundy. [See 2 Dillon R. 294, s. c., Fed. Cases, Nos. 13,503 and 13,504, pp. 181-183.] Mr. Justice Hunt, who delivered the opinion of the Supreme Court, an opinion concurred in by all the justices, cites Lynch v. Nurdin as authority in support of the claim of liability for injuries to a child sustained while playing with a turntable. There has been very great discussion of and disagreement as to the Stout case in the decisions of the State courts which followed after that case had been determined, the applicability of Lynch v. Nurdin to a turntable. ease ■being sharply challenged. That its principle was to be applied to such cases in the national courts was finally and definitely determined by the Supreme — 452 — Court of the United States in Union Pacific Railroad Co. v. McDonald, 152 U. S. 262. Turning to the decisions in our own State, it will be found that the rule invoked in the turntable cases has been under consideration by our court as well as by the Supreme Court in several cases. As said by Judge Lamm in Kelly v. Benas, 217 Mo. 1, l. c. 11, 116 S. W. 557, referring to the turntable rule, “It is established in our law, and doubtless on principle ought to .,be applied (in those jurisdictions asserting the doctrine) to other cases coming strictly within the limits of the doctrine and presenting every earmarking element upon which liability is predicated in the principal case. While this is so, the manifest distress and injustice flowing from unnecessarily extending the doctrine, or loosely applying it to many conceivable cases, has caused those courts accepting it to restrict its application to the narrowest bounds.” Citations of numerous cases from our Supreme Court illustrating this follow. [See particularly Witte v. Stifel, 126 Mo. 295, 28 S. W. 89; Barney v. H. & St. J. Ry. Co., 126 Mo. 372, 28 S. W. 1069.] The last reported decision of our Supreme Court on the question to which our attention has been called or which has come under our observation is the case of O’Hara v. Laclede Gas Light Co., 244 Mo. 395, 148 S. W. 884. In this latter case Judge Graves, who delivered the opinion of the court, quotes at length from the decision in Brown v. Salt Lake City, 33 Utah 222, l. c. 236, and following, as stating the position of the several courts throughout the country on this rule. We refer to that case and to the quotation from it made by Judge Graves. Among other cases cited in Brown v. Salt Lake City is the case of Overholt v. Vieths, 93 Mo. 422, 6 S. W. 74. Following the quotation above mentioned, Judge Graves refers for a full review of all the cases of our Supreme Court beginning with Overholt v. Vieths, supra, to the recent case of Kelly v. Benas, supra, — 453 — quoting at length, from that case. Discussing the facts in O’Hara v. Laclede Gas Light Company, supra, Judge Graves says: “In fact, the turntable cases are anomalous, and it is the practice of the courts to carry their doctrine no further than the previous decisions compel.” So it is held by our court in Houck v. Chicago & A. R. Co., 116 Mo. App. 559, l. c. 568, 92 S. W. 738; Marcheck v. Klute, 133 Mo. App. 280, l. c. 291, 113 S. W. 654. The conclusion in the O’Hara case is that the theory of the turntable or attractive nuisance eases was not applicable to such a case as the one then before the court. . It is further said by the court in that case that the plaintiff had constructed her petition on the turntable doctrine of negligence and that so constructing it and submitting the case to the jury on that construction of it, it was unnecessary for the court to concern itself in an endeavor to arrive at the proper construction to be given to the petition; that “by the theory adopted below she (plaintiff) is bound here.” This applies to the case now before us. That this case is distinctly presented by the petition and by the evidence as one in which the doctrine of the turntable, attractive nuisance or attractive appliance cases is sought to be invoked, is clear. Whatever diversity of views may be held by the courts as to the application- of the doctrine, or even as to whether it can be sustained at all, it is fairly clear that these factors are held by all the courts recognizing the doctrine as necessary to its application: First, the machinery or appliance, the operation of which was the direct cause of the injury, must have been a dangerous appliance in itself when set in motion, as is a turntable; or it was of a kind liable to become dangerous from the position or condition in which it is left, if set in motion, this latter seeming to fall in with Lynch v. Nurdin. There the dangerous appliance, if we may call it so, was a horse and cart, — 454 — articles neither in themselves nor in combination dangerous. Second, negligence by the defendant in leaving these appliances or things so unguarded, unsecured or unattended, in an open place frequented oy cnildren, as to allow of their being put in motion by the children who obtain access to them. It is to be noted that the doctrine is applied only in those cases in which the person injured is a child, one of tender age; on the borderland, as to years, between the irresponsibility of childhood and the responsibility of those of mature years. No ease assumes to apply the doctrine to an adult. It is clear from all the cases, that at the very foundation of liability for the injury is the negligence of the defendant. Unless that is proven, the benefit of the rule cannot be invoked. It seems pretty well settled, on analyzing the cases, that the rule is to be invoked, not as a foundation for the liability of the defendant, but to meet the defense of contributory negligence on the part of the plaintiff, a child, injured. It is applied, not as a weapon of attack or as a ground for liability, but as a defense on the part of the plaintiff, a minor, one of tender years, against liability for his own acts of negligence, carelessness or even trespass in going upon the premises where the appliance is maintained. This is made very clear by Bottum’s Admr. v. Hawks, supra, even though Judge Powers, speaking for the Supreme Court of Vermont in that ease, says that it seems “from a patient consideration of the whole subject in the light of all the cases at hand, that it is impossible to justify the doctrine on common law principles.” As is well argued in that ease, while suffering a dangerous appliance, which in itself or in its position was a menace to children to remain unguarded, was an act of deliberate carelessness, “it does not necessarily follow that this action will lie. ‘Negligence’ and ‘actionable negligence’ are distinguishable terms; carelessness does not always involve liability. Before liability attaches, — 455 — a duty must arise — a duty on the part of the party charged toward the party injured. So,” says Judge Powers, “our discussion begins with the question: Did the defendant owe the intestate a duty, and, if so, was it the duty of active care? If the answer to both branches of this question is affirmative, then, so far as the main question is concerned, liability is stated in this declaration.” In the case at bar we do not think it necessary to place our decision upon the construction of the petition to determine whether it states any cause of action. There is a verdict and judgment in this case, so that if a cause of action is stated, although imperfectly, the defendant having pleaded over after demurrer, there would be no cause for setting aside the verdict or arresting the judgment. That the petition in this case states a cause of action is not challenged. That it distinctly proceeds upon the theory of an attractive appliance 'and is distinctly bottomed on the doctrine of the turntable cases and that the case was tried upon that theory in the circuit court, admits of no doubt, as we have before remarked. What is claimed by counsel for appellant is a failure of proof of the material averments of the petition. Returning to a consideration of the evidence in the ease, substantially all of which we have set out, we are confronted with the question as to whether that evidence entitled the plaintiff to go to the jury; whether it shows actionable negligence on the part of defendant. It is averred that plaintiff, a child, saw one of these toys fall under a wagon being driven by employees of defendant and rushed out to obtain it, placing his hand and arm under the wagon to get it. The actionable negligence then here charged is that defendant’s employees driving the wagon “did then and there carelessly and negligently cause the hind wheel of said wagon to pass over plaintiff’s right — 456 — arm. ’ ’ Again it is averred, that defendants and their employees “in driving said/ wagon, and throwing said whirligigs into the air, knew, or by the exercise of ordinary care conld have known that said toys would attract plaintiff and other children of immature understanding into a place of danger of being injured by said wagon, and cause them to rush to obtain such whirligigs as would fall under the wagon, and that in doing so they were likely to maim or kill such children by running over them,” and it is charged “that the act of so driving over the streets and with such heavy wagon, throwing such whirligigs into the air, as aforesaid, and thereby enticing children to struggle to obtain said whirligigs, and to place their hands and arms under the wagon to obtain the same, and driving heedlessly, without noticing a child who had put his hand and arm under the wagon to obtain such whirligig, and passing over and crushing and breaking his arm, was an act of negligence on the part of the defendants.” It is furthermore averred in the. petition that “it was the purpose of the defendants in causing said large wagon to pass through said Dickson street, and in causing said whirligigs to be thrown into the air, to attract the attention of children thereto, and that said whirligigs were exceedingly attractive to children, and in.this way defendants sought to advertise, and did advertise their commodities.” Taking up this last assignment first, it is to be said of it that it is entirely unsustained by any evidence in the case. There is not a syllable or line of testimony tending to show that it was the purpose of defendant to attract the attention of children to the whirligigs, the wagon or the products of the defendant. Nor is there any evidence in the case from which any such purpose may be said to have been proven. It is not to be inferred that the children residing on the' streets along which this wagon was driven and the toys turned loose were prospective customers. The — 457 — advertising of the product undoubtedly was intended to reach housekeepers; the toys and the piled up cans, the banner on the wagon, were all parts of an advertising scheme. But it is a far cry to say that by attracting the attention of the children to the toys the attention of the consumers would be attracted to the product. Yet this is the argument that must be relied on to sustain this averment of the petition. It is argued by counsel- for appellant that this is a material averment in this petition. Those counsel argue that if the purpose of sending up these whirligigs or toys was to invite the attention of children and to cause them to congregate around the wagon of the defendant for the purpose of increasing the business of defendant, it would seem that defendant owed respondent a very different duty from that which it owed him if he got in the way of the wagon through some impulse of his own and without appellant’s knowledge or consent. We think this is a sound argument. We further agree that the burden of proof of this averment was on the plaintiff, respondent here. We hold he has failed to make any proof of it. Recurring to the other allegations of negligence, careful consideration of the testimony in the case forces us to the conclusion that it fails to establish any actionable negligence on the part of defendant’s employees. It appears by the evidence that defendant’s employees were driving the team and wagon through the public streets of the city of St. Louis. This they had an undoubted right to do: the right of access to and user of those streets. That the team was being driven at a slow walk, is the unvarying and uneontradicted testimony of every witness in the case, witnesses produced and introduced by plaintiff. Even the plaintiff himself so testified. There were two persons on that wagon in charge of the team and of the appliances, one of them the driver, the other a young man who was turning loose these toys. It is true that — 458 — one of plaintiff’s witnesses testifies that lie thought he saw three people there, one of them standing in the center of the wagon throwing out these toys. This witness did not state that as a positive fact but stated it as a matter of opinion about which he admitted he was not certain. He is contradicted in this by every other witness of the plaintiff, all of whom were much nearer to the wagon at the time the accident happened than that witness. He was some distance from it and at the time, as he himself testifies, was engaged in opening and examining his mail, which he had in his hand. He says he looked up in a very casual way at the wagon as it passed him. Obviously he paid no particular attention to it or as to who was on it, until he saw his neighbor, the plaintiff, being picked up after the wagon had passed over his arm. He is contradicted in his assertion of there being three people in this wagon by material facts in the case. He says that he thought this third person was standing in the center of the wagon, while the evidence of every other witness in the case ■ is that the center of the wagon, the bed back of the seat, was filled by tin cans which were piled up in the shape of a pyramid or steps, the apex of the pyramid directly over the center of the wagon and above the seat upon which the two occupants in charge of the wagon were seated. We can assume that there were two persons in charge of this wagon and seated at the proper place in the wagon on the seat. The driver was attending to the team, the other person, apparently a boy or young man, in front of this pyramid or pile of tin cans and on the seat, taking these toys from under the seat, winding them up and throwing them into the air. Both were looking to the front. Beyond question these were guilty óf no actionable negligence in driving this wagon. They did not know that they had run over anyone until after the wagon had gone some distance and were then told of it by a bystander. It would be a hard rule — 459 — to say that those in charge of a team were required to look behind them to see if any accident was liable to happen after their vehicle had passed. All of our courts which have passed on the question of the duty of those driving a team or an engine, have, so far as we have read, confined the duty of the driver to “looking ahead,” according to whether he was advancing or backing with his vehicle. We know of no case laying down any duty upon these to look behind and watch to see what has happened after the vehicle has passed. There is an exception to this rule, in so far as automobiles are concerned. [See section 12, Acts 1911.] Their attention is and must be to the front. They were liable if they ran over any one who was in front or could be seen in front of them, or were going at such speed as to endanger those who' might also be using the public ways. The evidence is without contradiction that- these toys were thrown out toward the front of the wagon, or toward the side. If any of them passed behind the wagon they, and any one running after them, were out of the vision of the persons in charge of the wagon and who were sending the toys into the air. Nor can it be said to be an act of negligence on the part of those persons that they did not watch the flight of these toys to see what happened in connection with loosening them on the public street. There is not a particle of evidence tending to show that any boys followed any one of these toys except the boys who followed .this particular toy, and which this plaintiff endeavored to secure. Plaintiff and these boys did not go in front of the team. They went behind it. There is evidence that other of these toys were set flying, but as to where they flew, what became of them, is without any evidence. Nor is there-any evidence in the case that any children, or any other person for that matter, attempted to secure them or ran out into the street to get hold of them. That the toys were attractive to — 460 — children is beyond question. But conceding that is far from admitting that it proved or even tended to prove that those setting them off had any reason to apprehend that children would follow them under the wagon, especially go between the wheels of the wagon while it was in motion for the purpose of getting one. In fact plaintiff was the only boy who did reach under the wagon. It cannot be held that the law would require those in charge of this wagon, when they threw out one of these toys, .to watch its flight, and to stop the team until they saw what had become of it; such requirement would be unreasonable. There was nothing therefore about the manner in which these toys were set free by the employees of defendant, or from the actions of the boys on the street, to warn them that setting the toys' free was liable to inflict any injury whatever upon anybody. It was not actionable negligence, as we hold, to set loose these toys. As every witness testifies, even as this plaintiff himself testifies, when the boy, the plaintiff here, put his arm under the wagon to get hold of this toy, to reach it, he knew that the wagon was moving, that the wheels, were turning. He was old enough to know that if he put his arm in front of a moving wheel and left it there, that he was going to be hurt; he was- of sufficient discretion to know that; he says he did know it. •His excuse is that he thought the wagon had stopped or was going to stop. It is not likely, from the facts in evidence in the case that he thought anything about this. Like any other boy of his age, the chances all are that at the time, if he thought at all, he thought he would be quick enough to get the toy from under the wagon before the wheel would reach him. He took that chance and lost. The doctrine of attractive appliances, of the turntable cases, is therefore inapplicable here and cannot relieve plaintiff of the charge of contributory negligence; cannot be used to put the — 461 — responsibility for the injury, which he undoubtedly sustained, upon this defendant. Furthermore, the alleged attractiveness of the toy was no't the causa causans of the injury. That was a remote cause. The immediate cause was plaintiff placing his arm between the front and rear wheels of a moving vehicle; one that he knew was moving and which he had no reason to believe would stop. For all these reasons, we are of the opinion that plaintiff cannot recover and that the learned trial court erred in sending the case to the jury. The judgment of the circuit court is accordingly reversed. No'rtoni and Caulfield, JJ., concur.