DocketNumber: No. 41078.
Citation Numbers: 220 S.W.2d 58, 359 Mo. 103
Judges: <bold>[59]</bold> HYDE, J.
Filed Date: 5/9/1949
Status: Precedential
Modified Date: 1/12/2023
This is an action for $15,000.00 damages for wrongful death of plaintiffs' three year old son, with a second count for $5000.00 for hospital and medical expense. On motion of defendant, plaintiffs' petition was dismissed with prejudice and plaintiffs have appealed. We think the ruling of the trial court was correct.
Plaintiffs' petition alleged the facts hereinafter stated. Defendant was the owner of property in a thickly populated area in the City of St. Louis, covering most of a block on which defendant was building residences. There were completed residences on the west side of this block, in one of which plaintiffs lived. Defendant's employees were in the habit of building fires on unfenced portions of the lots in the rear of residences being built by defendant on the south side of the block, east of and adjacent to the rear of plaintiffs' residence. There was no fence or obstruction between these partly constructed residences and the occupied residences. It was also alleged that defendant knew or should have known that small children of tender years and immature judgment were playing in, on and around the lots and property where defendant was erecting homes; that defendant knew or should have known that small children of tender years would be attracted to said premises for the purpose of gathering small pieces of lumber and other refuse for use in their play; that defendant permitted small children of tender years to so play and take materials from the rear of said buildings; that on or about the 4th day of December, 1946, defendant's employees caused a fire to be built on the rear of premises located at 6741 Dale Avenue, at a place where defendant knew, or could have known, that small children were accustomed to play; that defendant negligently permitted said fire to burn and smolder, unattended and unguarded, in an extremely dangerous condition, at a place where defendant knew, or should have known, that small children were likely to contact said smoldering fire *Page 107 and injure themselves; and that defendant's employees negligently failed to put out said fire before they left said premises on the 4th day of December, 1946. It was further alleged that as a direct and proximate result of such negligence, on that date, plaintiffs' son was caused to come in contact with said smoldering fire and hot ashes and was severely burned, causing his death.
[1] Plaintiffs rely mainly on Davoren v. Kansas City,
Plaintiffs quote the following statement in the Davoren case: "The legal obligation rests upon all who create or allow such dangerous conditions to use reasonable precautions to see that no unnecessary injury shall flow therefrom to others, and, if that duty is violated and injury results, the guilty party will be held liable in damages." This statement is also quoted in Brown v. City of Marshall,
The fire in this case cannot come within the classification of nuisance. The fire was a very temporary condition; and the failure to put it out, or to guard it until it went out, could only be causal negligence under any circumstances. We discussed the distinction between nuisance and negligence in Pearson v. Kansas City,
[2] Plaintiff does not claim that the attractive nuisance doctrine could be applicable to this case; and, of course, it could not be for reasons similar to those above discussed. Our decisions "limit the doctrine to instrumentalities and conditions which are inherently dangerous instead of applying it to conditions in which danger has been created by mere casual negligence under particular circumstances." [Hull v. Gillioz,
We hold that defendant is not liable under the circumstances of this case.
The judgment is affirmed. All concur, except Douglas, J., who dissents in opinion filed.
[3] DOUGLAS, J., Dissents, believing the case should be tried to develop the facts fully in order to determine whether the application of the doctrine should be reexamined in view of present living conditions in densely populated urban areas. *Page 109
Pearson v. Kansas City , 331 Mo. 885 ( 1932 )
Bagby v. Kansas City , 338 Mo. 771 ( 1936 )
Brown v. City of Marshall , 228 Mo. App. 586 ( 1934 )
Diehl v. Green Fire Brick Co. , 299 Mo. 641 ( 1923 )
Dutton v. City of Independence , 227 Mo. App. 275 ( 1932 )
Courtell v. McEachen , 51 Cal. 2d 448 ( 1959 )
Carter v. Skelly Oil Co. , 191 Kan. 474 ( 1963 )
Gerchberg v. Loney , 1 Kan. App. 2d 84 ( 1977 )
Frank v. Environmental Sanitation Management, Inc. , 687 S.W.2d 876 ( 1985 )
Wells v. Henry W. Kuhs Realty Co. , 269 S.W.2d 761 ( 1954 )
Paisley Ex Rel. Paisley v. Liebowits , 347 S.W.2d 178 ( 1961 )
Holifield v. Wigdor , 361 Mo. 636 ( 1951 )
Doran v. Kansas City , 241 Mo. App. 156 ( 1951 )
Patterson Ex Rel. Patterson v. Gibson , 287 S.W.2d 853 ( 1956 )