Cox v. Alabama Water Co.

*39 SAYRB, J. The report of the ease reproduces counts 1, 4, A, D, and B of the complaint, these counts and the demurrers thereto sufficiently disclosing the questions raised for decision on this appeal. In the trial court a demurrer to each count of the complaint was sustained. Plaintiff thereupon suffered a nonsuit and takes this appeal, in agreement with the provision of section 6431 of the Code. The effort on the part of plaintiff is to oring his case within some permissible application of the doctrine of the so-called “turntable” eases. Railroad Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745; Union Pacific v. McDonald, 152 U. S. 262, 14 S. Ct. 619, 38 L. Ed. 434; Alabama G. S. R. Co. v. Crocker, 131 Ala. 584, 31 So. 561; Clover Co. v. Diehl, 183 Ala. 429, 63 So. 196. Liability in cases of this general character has been under consideration in a multitude of cases. We shall not undertake a discussion of them. We observe, however, that the difference between negligence and intentional wrong must be kept in view. In that connection we cannot do better than to quote from the able opinion of Carpenter, C. J., in Buch v. Amory Mfg. Co., 69 N. H. 257, 44 A. 809, 76 Am. St. Rep. 163, a case in which a boy, 8 years of age, was injured by coming into contact with machinery: “Actionable negligence is the neglect of a legal duty. The defendants are not liable unless they owe to the plaintiff a legal duty which they neglected to perform. With purely moral obligations the law does not deal. Bor example, the priest and Levite who passed by on the other side were not, it is supposed, liable at law for the continued suffering 'of the man who fell among thieves, which they might and morally ought to have prevented or relieved. * * * ‘In dealing with eases which involve injuries to children, courts, *• * * have sometimes strangely confounded legal obligation with sentiments that are independent of law.’ Indianapolis v. Emmelman, 108 Ind. 530 [9 N. E. 155, 58 Am. Rep. 65]. ‘It is important to bear in mind, in actions for injuries to children, a very simple and fundamental fact, which in this class of cases is sometimes strangely lost sight of, viz., that no action arises without a breach of duty.’ ” Wheeling R. R. Co. v. Harvey, 77 Ohio St. 235, 83 N. E. 66, 19 L. R. A. (N. S.) 1136, 122 Am. St. Rep. 503, 11 Ann. Cas. 981. We suppose that, if an adult person had gone upon the premises of defendant in the circumstances alleged in the complaint in this case, no one would contend that defendant would have been liable for his death or injury by falling into the “artificial pool, cistern, or reservoir,” constructed and maintained by defendant. At least, it has been so held by this court, along with others, and by the Supreme Court of the United States. Athey v. Tennessee Coal, Iron & R. Co., 191 Ala. 646, 68 So. 154; Alabama Great Southern R. Co. v. Cummings, 211 Ala. 384, 100 So. 553, 33 A. L. R. 439; Sloss I. & S. Co. v. Tilson, 141 Ala. 152, 37 So. 427; United Zinc Co. v. Britt, 258 U. S. 268, 42 S. Ct. 299, 66 L. Ed. 615, 36 A. L. R. 28. In Sloss I. & S. Co. v. Tilson, supra, the court by quotation from previous adjudications stated the doctrine to which we referred in the outset of this opinion; viz., to create a legal duty, the person who goes upon the premises of another merely for his own benefit or pleasure must sustain a relation to the owner or his business equivalent to an invitation to come upon the premises. But plaintiff’s intestate was a boy 8 years of age, and the complaint seems to charge defendant with the duty to care for intestate upon two considerations, viz., an invitation should be inferred on the attractive nuisance theory, and, in the second place, defendant negligently allowed a slime to accumulate on the sloping sides of its reservoir, so that, if a child fell in, he would be unable to get out as otherwise, plaintiff in effect asserts, he might have done by climbing back to the top of the retaining wall. The difficulty is to find a reasonable ground on which to predicate the invitation necessary to plaintiff’s case. Plaintiff relies upon an implied invitation, for there was none other. But, bearing in mind the principles of decision hereinbefore stated, nothing alleged suffices to justify the implication. The allegation of count D, to quote what is the strongest case to be found in the complaint: “Plaintiff avers that the children in great numbers, with great frequency, and for a long period of time had been resorting to said pool, picnicking there, playing there, using said cement run-a-round, using the grounding inside of said fence immediately around. said pool, and passing along to and from school by said pool within, to wit, 10 feet thereof, and over the premises same was located upon, all of which facts were known to the agent and servants of the defendant and had been known to them for a long period of time.” It is not to be doubted that, under such circumstances, defendant owed plaintiff the duty to refrain from any act calculated to inflict injury on children — or, for that matter, any one else — on the premises; but, to make defendant responsible for the mere condition of the property, an invitation must be implied. The difficulty with such cases, when decided with reference to principles of law of general observance, has always been to find just and reasonable ground on which to rest the implication of invitation, for it is hard to infer an invitation from trespasses which have only the merit of repetition, and this court has said on good authority that neither sufferance, nor permission, nor passive acquiescence is equivalent to an invitation. Atlantic Coast Line v. Carter, 214 Ala. 254, 107 So. 218. *40 The effort, as we have indicated, is to supply an invitation on the theory of attractive nuisance. That theory and doctrine were founded on Railroad Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745, the original turntable case, of which case the Supreme Court of the United States, in the recent case of United Zinc Co. v. Britt, 258 U. S. 26S, 42 S. Ct. 299, 66 L. Ed. 615, 36 A. L. R. 28, observed that: “It seems to have been assumed without much discussion that the railroad owed a duty to the boy.” The dissenting Justices in that case (258 U. S.) were of the opinion that the decisions in the turntable or attractive nuisance cases were overruled by the prevailing opinion. The majority judges, however, stated their judgment to be that: “The doctrine needs very careful statement not to make 'an unjust and impracticable requirement.” And that: “The principle if accepted must be very cautiously applied.” And this court in Athey v. Tennessee Coal, Iron & R. Co., 191 Ala. 652, 68 So. 154, noted the fact that some courts repudiate the doctrine of the “turntable cases,” while some of those that acknowledge their authority evince a marked disinclination to extend it to new and different circumstances. This was repeated in Alabama Great Southern R. Co. v. Cummings, 211 Ala. 381, 100 So. 553, 33 A. L. R. 439. In the editorial note under the case of Wheeling Railroad Co. v. Harvey, 19 L. R. A. (N. S.) 1145, after reference to cases in which liability as for attractive nuisances was at issue, it was said that: “In the majority of cases, however, the attempt to extend the attractive nuisance doctrine to dangers of the class discussed under this subdivision of the note [meaning the subdivision discussing -ponds, reservoirs, waterways, etc., as attractive nuisances] has been unsuccessful.” Quite a number of the cases on the subject are reviewed in the note referred to. In the note to Sullivan v. Huidekoper, 7 Ann. Cas. 196, a good many cases are cited to the proposition that the large majority of the decisions, including some which recognize the doctrine of the turntable eases, deny the liability of a landowner for injuries to trespassing children by reason of open and unguarded ponds and excavations upon his premises. That line of thought was followed by this court in Athey v. Tennessee Coal, Iron & R. Co., supra, and Thompson v. Alexander City Mills, 190 Ala. 184, 67 So. 407, Ann. Cas. 1917A, 721. Many cases on the subject are cited in the text of Wheeling Railroad Co. v. Harvey, supra. If there be any cogency in what has been said, there is no need for an extended discussion of appellant’s second suggestion of ground of liability, viz., that defendant allowed a slime to accumulate on the sloping sides of its reservoir, thus — such is the effect of the argument- — setting a trap for boys who might fall into the reservoir. A like argument appears to have been suggested in United Zinc Co. v. Britt, supra, and we have found it in some other cases. In the case just mentioned the court disposed of this suggestion in the following language: “The liability for spring guns and mantraps arises from the fact that the defendant has not rested on that assumption [viz., the assumption that the owner of land owes no duty in the ease of trespassers to remove even hidden dangers], but on the contrary has expected the trespasser and prepared an injury that is no more justified than if he had held the gun and fired it.” That, to us, seems to be a reasonable conclusion. Appellant’s contention in this regard would require the owner of every pond, reservoir, or waterway to so prepare his property as that, if trespassing boys should fall in, there would be no danger of drowning. That, we think, would be an unreasonable requirement. We trust we are as much inclined to give heed to the “yearnings of humanity” as a court in which justice is administered according to law ought to be; but established rules of law, departed from in some cases, we concede — the intolerable burden a contrary rule would place upon the ownership of property, and the general drift of the courts away from an extension of the rule of the attractive nuisance cases — these considerations induce us to hold that the demurrer to appellant’s complaint in this case was properly sustained. Affirmed. ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.