Hornsby v. Henry , 68 Ga. App. 171 ( 1942 )

The doctrine of the "turnable" or attractive-nuisance cases will not be extended to cover a case where an abandoned automobile truck, with a tank attached which contained gasoline, was left on the premises of an automobile service-station operator, even though children of tender years were known to have played on the premises and about the truck, and a child, in so playing, struck a match near the gasoline tank, causing an ignition which burned another child and caused his death.

DECIDED OCTOBER 14, 1942. This suit was brought by John Hornsby, eight years of age, through his next friend, against W. C. Henry and T. J. Henry, doing business as the Henry Motor Company, a partnership. The plaintiff died during the pendency of the action and his administratrix was substituted as party plaintiff. Damages were claimed for personal injuries received by the explosion of a gasoline tank attached to an old abandoned truck which had been left for a long time on a vacant lot adjoining the premises of the defendants. The explosion was caused by the lighted match, struck by one of the two boys playing around the truck, which ignited the clothes of Hornsby, injuring him to such an extent that he received second and third degree burns, suffered excruciating pain and anguish, was in the hospital for several weeks, and finally died as a result of the burns. Negligence in the following particulars was alleged to have been the proximate cause of Hornsby's death: "In placing said automobile truck on said vacant lot accessible to the general public and particularly to the plaintiff and children of tender years when it was in a dangerous condition. In failing to warn the plaintiff of the dangerous nature of said truck in its then condition when they knew or should have known that it was likely to injure the plaintiff. In allowing the said automobile truck in dangerous condition to remain on a place where the plaintiff and other children were accustomed to playing, with the knowledge of the defendants. In failing to drain the said gasoline tank of all gasoline so that there would not be any inflammable substance that might ignite if any one playing around the same should strike a match anywhere near the said gasoline." The defendants demurred generally to the petition, which demurrer was sustained. The plaintiff excepted. The plaintiff's case rests on the doctrine of attractive and alluring danger, to raise the inference that the child was an invitee. It is not reasonable to assume that an old truck would be so attractive and alluring as to amount to an implied invitation to play around it. However, we think this would be governed by the ruling in Savannah, Florida Western RailwayCo. v. Beavers, 113 Ga. 398 (39 S.E. 82, 54 L.R.A. 314), as follows: "One who makes an excavation upon his land is not bound to so guard it as to prevent injury to children who come upon it without his invitation, express or implied, but who are induced to do so merely by the alluring attractiveness of the excavation and its surroundings." See Seaboard Air-Line Railway v. Young, 20 Ga. App. 291 (93 S.E. 29), the headnote of which reads: "A heavy two-wheeled truck used for moving freight in a depot was not so attractive as a plaything for children and so dangerous in its nature as to come within the rule of the `turntable cases,' and the railway company was not liable for leaving it accessible to a child who was in the habit of playing at the depot and who was injured by it." See also Haley MotorCo. v. Boynton, 40 Ga. App. 675 (150 S.E. 862). The case at bar is almost identical with Bowers v. Texas Co., 65 Ga. App. 874 (16 S.E.2d 765), where the court said: "As a general rule, the owner of private grounds is under no obligation to keep them in a safe condition for the benefit of trespassers, intruders, idlers, bare licensees, or others who come upon them, not by any invitation, express or implied, but for their own purposes, their pleasure, or to gratify their curiosity, however innocent or laudable their purpose may be." Counsel for the plaintiff cites Atlantic Ice Coal Co. v. Harris, 45 Ga. App. 419 (165 S.E. 134). We see nothing in that case which is at variance with the cases herein cited. In fact, the rulings in the Beavers case, supra, and in Southern Cotton-Oil Co. v.Pierce, 145 Ga. 130 (88 S.E. 672), are incorporated as part of headnote 1 of the Atlantic Ice Coal Co. case. Simmons v.Atlanta West Point Railroad Co., 46 Ga. App. 93 (166 S.E. 666), Southern Railway Co. v. Chatham, 124 Ga. 1026 (53 S.E. 692, 6 L.R.A. (N.S.) 283, 4 Ann. Cas. 675), and Ferguson v. Columbus Rome Railway, 75 Ga. 637, differ on their facts from the case at bar, and are therefore not controlling. InBraselton v. Brazell, 49 Ga. App. 269 (175 S.E. 254), it was ruled: "The doctrine of the so-called `turntable cases,' which constitutes an exception to the general rule that an occupier of land is under no duty to keep his premises safe for trespassers, but under which it has been held that a dangerous and attractive instrumentality such as a turntable must be kept on the land with ordinary care to protect children, who might reasonably be attracted thereby, will be strictly limited; and the doctrine will not be extended so as to have application to a motor-truck which is being driven by an agent of the owner on city streets or the premises of another."

The facts stated in the petition, taken as true (as they must be when tested by general demurrer), fail to show negligence by the defendant. The court did not err in sustaining the general demurrer.

Judgment affirmed. Broyles, C. J., and MacIntyre, J., concur.