
    CONSOLIDATED LEAD & ZINC CO. v. CORCORAN.
    Circuit Court of Appeals, Tenth Circuit.
    January 6, 1930.
    Rehearing Denied February 17, 1930.
    No. 8.
    
      Stewart Lynch, of Tulsa, OH. (A. C. Wallace, of Miami, OH., and Herbert D. Mason, of Tulsa, OH., on the brief), for appellant.
    Frank Nesbitt, of Miami, OH., for appellee.
    Before LEWIS, COTTERAL, and PHILLIPS,, Circuit Judges.
   COTTERAL, Circuit Judge.

The Consolidated Lead & Zinc Company appeals from an adverse judgment rendered upon the verdict of a jury in a suit of Karl Corcoran, a minor, brought by a next friend, to recover damages for personal injuries sustained by him on the premises of the company. The errors assigned are mainly (1) overruling a demurrer to the petition for failure to allege a cause of action, (2) refusal to direct a verdict for the company, and (3) instructions given and refused. We find it necessary to reverse the judgment, because of an instruction relative to damages, but as the other questions now presented will likely arise at another trial, we proceed also to determine them.

A preliminary averment of the petition is that the company owned at Picher, OH., a city of 15,000 inhabitants, a mill, transformer house, and other equipment, known as the “Piokee Mine,” located one block north of the high school building, passed by a public road long traveled by many inhabitants and used daily by sehool children. The transformer house, it is alleged, 15 by 20 feet in dimensions, located near and in plain view from the road, was maintained by the company with electrical equipment for the operation of the mine, and for several months before the accident, without fence or guard, with the front and a small side door open, the equipment consisting of rheostats, transformers, and switch connections, attractive and easily accessible to children, exciting their curiosity and interest, without notice it carried a dangerous charge of electricity.

It is alleged that for several months before the accident it had been the custom of the plaintiff and other boys who attended the school and lived in the neighborhood to play around the transformer house and mine, haul refuse from around the house, and to use it and the premises around the mine as a playground, as the company well knew, or could easily have known, and further, on the day of accident there was no day watchman at the mine, and the company had recently cut the wiring in the transformer house, leaving one cord loose and unwrapped on the floor, but connected with the electrical power.

It is then alleged that on February 22, 1927, while these conditions were known to and permitted by the company, the plaintiff and another boy were playing in the transformer house, the latter pushed a switch, connecting the power with the wire on the floor, and shortly they engaged in a friendly scuffle in which plaintiff fell to the floor with his hands on the exposed wire, whereby the eleetrie current burned his arms, necessitating amputation of both, with the attendant pain and suffering, permanently depriving him of earning capacity and rendering him an object of pity; that the injury was due to the negligence of the company in failing to fence, guard, protect, or lock the transformer house, or close it for several months, and to have a watchman there to notify children of the danger, well knowing it contained machinery interesting and alluring to children and higHy dangerous, and they had customarily played around the house and equipment; and that the injury would not have occurred but for defendant’s negligence.

An objection to the petition is it shows the plaintiff was a trespasser on the company’s property, whereby the company could be liable only for a willful or wanton injury, not complained of in the petition. Many eases are cited to so fix plaintiff’s status, particularly United Zinc Company v. Britt, 258 U. S. 268, 42 S. Ct. 299, 300, 66 L. Ed. 615, 36 A. L. R. 28, where the allurement was a poisonous pool of water, without evidence that it attracted the children to the premises. That ease distinguished Railroad Company v. Stout, 17 Wall. 657, 21 L. Ed. 745, where an unlocked turntable in an open space and near two roads was the attraction, and the company had reason to anticipate children would resort to it, and Union Pacific Railway v. McDonald, 152 U. S. 262, 14 S. Ct. 619, 38 L. Ed. 434, where a frightened boy ran and fell into burning slack, on an open lot near a path. Both of those eases are more nearly applicable here. The Britt Case was essentially different in the facts, which were held not to impose the duty of care. The court said: “There can be no general duty on the part of a landowner to keep his land safe for children, or even free from Hdden dangers,” but was careful to add, “if he has not directly or by implication invited or licensed them to come there.” The ease is obviously not in point. The “attractive nuisance” doctrine is also said to be inapplicable, and eases are cited as a demonstration. Of these, Hardy v. Missouri Pacific (C. C. A.) 266 F. 860, 36 A. L. R. 1, is typical. It was held there must be a reasonable expectation of the presence of children at the time and place of danger to impose the duty of protection, and there was no sufficient evidence on which to found it.

But it is alleged in this ease that habitual use as a playground had been made of the premises and transformer house, as the company knew or might easily have known, and in that situation the plaintiff w.as a licensee, and being there as such, with the acquiescence of the company, it owed him the duty of protection against danger in the transformer house known to- the company, to which he might be attracted and to which it might reasonably anticipate he would resort and be injured. Escanaba Mfg. Co. v. O’Donnell (C. C. A.) 212 F. 648; The Ansonia v. Sullivan (C. C. A.) 239 F. 296; Atlanta & W. P. R. Co. v. Green (C. C. A.) 246 F. 676; Felton v. Aubrey (C. C. A.) 74 F. 350; Clark v. Long-view Public Service Co., 143 Wash. 319, 255 P. 380; Sweeten v. Pacific P. & L. Co., 88 Wash. 679, 153 P. 1054; Smith v. Windsor Reservoir & Canal Co., 78 Colo. 169, 240 P. 332; Cahill v. Stone & Co., 153 Cal. 571, 96 P. 84, 19 L. R. A. (N. S.) 1094; 45 C. J. 802, 803, 806, 807.

The plaintiff’s ease as made by the petition rests on his position as a licensee at the grounds and transformer house, and we are of the opinion a cause of action was sufficiently alleged. The petition is challenged as not alleging direetly he was attracted to the machinery in the power house. We regard the pleading as so intended, but the defect is subject to remedy by amendment, which doubtless should be made.

It is urged the petition does not show the negligence of the company was the proximate cause of the injury, since it left the wires in a safe condition, and they were rendered unsafe by the intervening act of plaintiff’s companion in 'throwing the switch and making the connection with the wire that wrought the injury, and, furthermore, that the evidence (which we may notice at this point) is likewise deficient in showing that his companion pushed him upon the wire. Assuming these facts, the contention is. unsound. The injury was attributed in the petition direetly to defendant’s negligence. It was a question of fact whether the injury was the natural and probable consequence of such negligence, and could have been foreseen and anticipated by the defendant, as a reasonably prudent company. Johns-Manville v. Pocker (C. C. A.) 26 F.(2d) 204. The acts of plaintiff’s companion were not essentially different from the operation by another of the turntable in the Stout Case, 17 Wall. 657, 21 L. Ed. 745. Leaving the machinery at a playground so unguarded in the open house that ehildren might reasonably be expected to operate it was the primary negligence charged, for which a recovery was authorized. Edgington v. Burlington, C. R. & N. R. Co., 116 Iowa, 410, 90 N. W. 95, 57 L. R. A. 561; Herman v. Markham Air Rifle Co. (D. C.) 258 F. 475; Milwaukee R. Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256; 45 Cyc. 931, 932. As accentuating the responsible cause of the injury, it was alleged that the company had shortly changed the wires and left them in a condition dangerous to ehildren engaged in play. 45 Cyc. 802, 803.

The motion to direct a verdict was not well founded, as the evidence fully substantiated the averments of the petition. We note the more prominent facts the evidence proved or tended to prove at the trial.

Most of the evidence was undisputed. The physical conditions at the mine premises and transformer house were depicted and illustrated by exhibits. There was no day watchman, fencing, or warning sign. The doors of the house were open. Two of the wires carried high voltage, when the switch was open. The defendant’s electrician knew before the accident they were bare in places. Children had played at the mine and about the transformer house for 9 years. The night watchman saw them and never interfered. Plaintiff, a youth 13 years old, had played about the house seven or eight times before the accident and had played there when workmen were present, and the door of the house was then open. Other ehildren played there at the time. On the day of the aeeident, plaintiff first went to play at the house of his companion, L. D. Ray. Both were school ehildren in the neighborhood, of about the same age. They went to Treeee, Kan., playing about the box ears. In the afternoon, they went to the mine, passing the transformer house with the door open, climbed on the jack bins, rode on a car, and saw the machinery. At plaintiff’s suggestion they went into the house as they had done before to play with a handle, attached to a wire and fastened on a tin box. Both played with the machinery. Plaintiff did not know the hidden danger. His account was that after he had sat down and was putting some bolts through a hole, Ray took some gloves from his (plaintiff’s) pocket and as the plaintiff arose to get them Ray pushed him down on the wires, which so badly burned his .arms that amputation of both was necessary. The accounts of tbe youths varied to an extent, Ray claiming that plaintiff climbed upon an 8-foot platform and pulled a switch. Tbe public bad for years used without objection a path running across tbe mine premises within 15 feet of tbe transformer bouse door, and thence across a bridge spanning across a pond. About a week before tbe accident tbe apparatus in tbe bouse was repaired and new hoist wires added.

Tbe foregoing and other details omitted for tbe sake of brevity were in evidence. For tbe like reason tbe petition is deemed sufficient, we bold tbe evidence ample to withstand tbe motion to direct a verdict for tbe defendant, and that motion was properly overruled.

We have examined tbe instructions to tbe jury and find them free from any material error, with one exception. Tbe issues were explained and tbe jury advised as to tbe duty of reasonable care of tbe company toward tbe plaintiff, if it permitted tbe children to use tbe transformer bouse and immediate premises as a playground, and acquiesced therein; and, further, that if it negligently omitted that duty, and this proximately caused tbe injury to plaintiff, it was liable in damages therefor. Tbe instructions tendered appear to us either to have been not justified or substantially given to tbe jury.

Tbe court charged tbe jury that in fixing damages it should consider plaintiff’s impaired earning capacity as well as tbe pain and suffering due to tbe injury. Tbe defendant duly excepted to this part of tbe charge. This request was refused: “Tbe jury is not to consider in connection with any damages which it may award tbe plaintiff, any sums expended or indebtedness incurred by tbe parent or parents of tbe plaintiff as a result of plaintiff’s injuries in the way of doctor’s bills, medicine, hospital bills, etc., nor tbe value of bis services to such parent or párente from tbe date of bis injury to tbe date of bis majority.”

There was no prejudicial error in not so charging tbe jury. No claim was made for tbe expenses referred to, and they were necessarily excluded by tbe court. Tbe value of plaintiff’s services to bis parents was not claimed in any way, and it is to be presumed they were rendered gratuitously, so that no loss in that connection could reasonably have been allowed.

But tbe instructions were broad enough to warrant an allowance for lost earning capacity prior to the time plaintiff reached bis majority. Section 8026, Compiled Oklahoma Statutes 1921, provides that tbe earnings of a minor belong to bis father, or, if be be dead, to bis mother. However unfortunate this error may have been, and although we may consider tbe verdict in this case for $15,000 was meager compensation for tbe injury to tbe plaintiff, we are unable to determine that a substantial part of tbe award was not a sum due tbe mother, which tbe plaintiff was not entitled to recover. Shawnee Gas & Electric Company v. Hunt, 32 Okl. 368, 122 P. 673; Farrar v. Wheeler (C. C. A.) 145 F. 482. For this error, tbe judgment is reversed, and tbe cause is remanded to tbe District Court, with direction to grant a new trial.  