Hedgepath v. City of Durham

Schenck:, J. In 38 Am. Jur., Negligence (subhead Attractive Nuisances), par. 142, it is written: “While'the doctrine has been variously stated, the courts which accept it generally are in substantial accord with the proposition that one who maintains upon his premises a condition, instrumentality, machine, or other agency which is dangerous to children of tender years by reason of their inability to appreciate the peril therein, and which may reasonably be expected to attract children of tender years to the premises, is under a duty to exercise reasonable care to protect them against the dangers of the attraction. Within the limitations herein considered, the doctrine is for the benefit of a meddling, as well as of a trespassing, child. The result of such doctrine is that one is negligent in maintaining an agency which he knows, or reasonably should know, to be dangerous to children of tender years, at a place where he knows, or reasonably should know, children of tender years are likely to resort, or to which they are likely to be attracted by the agency, unless he exercises ordinary care for the protection of such indiscreet and youthful persons.” In par. 145, on the same subject at p. 811, it is written: “If the place or appliance cannot be said to possess a quality calculated to attract children generally, it must be shown that to the defendant’s knowledge the injured child or others were in the habit of using it. Knowledge of the presence of children is shown by proof that children were in the habit of playing on or about the offending appliance or place. On the other hand, many instrumentalities do not in their character suggest, or impute knowledge, that children will make use of them to their injury, in which cases the doctrine of attractive nuisance does not apply.” Such being the law, we are impelled to hold that the action of the trial judge in sustaining the demurrer to the evidence was proper. There is no evidence in the record which shows, or tends to show, that the defendant had any knowledge that the plaintiff’s intestate ever at any previous time played or attempted to swim at or in the pool or pond of water in which he was drowned, or that any other children or child ever played or swam therein; indeed there is no evidence that any children or child ever, at any other time than on the fateful day of 22 May, 1942, *824 played or swam in the pool or pond. There is a total absence of any evidence that the defendant had any knowledge of any nse being made by children of the pool as a place to play or swim, or for any other purpose, and of any allurement of such pool. In the absence of such evidence of such knowledge and of such allurement, the case of the plaintiff must fail. In Kramer v. R. R., 127 N. C., 328, 31 S. E., 468, which was an action to recover for the alleged wrongful death of the plaintiff’s intestate, a child nine years of age, wherein it was alleged the intestate was injured and killed by the falling upon him of crossties which had been piled on the public highway and upon which the intestate had crawled or climbed, it is written: “. . . before they (the jury) could say that the intestate’s injury and death were caused by the negligence of the defendant, they should inquire whether or not the defendant knew that the pile of cross-ties in the street was a common resort of little boys of tender years in that neighborhood to play, and the burden was on the plaintiff to show that the railroad company knew that fact, and that, if the defendant did not know it, then they should answer the issue as to the defendant’s negligence, No.’ That was a correct instruction.” The cases cited and relied upon by the plaintiff, appellant, Brannon v. Sprinkle, 207 N. C., 398, 177 S. E., 114; Kramer v. R. R., 127 N. C., 328, 37 S. E., 468; Ferrell v. Collon Mills, 157 N. C., 528, 73 S. E., 142; Starling v. Cotton Mills, 171 N. C., 222, 88 S. E., 242; Barnett v. Mills, 167 N. C., 576, 83 S. E., 826; Comer v. Winston-Salem, 178 N. C., 383, 100 S. E., 619; Cummings v. Dunning, 210 N. C., 156, 185 S. E., 653, all differ from the case at bar in that in each of those cases it appears that the defendant had notice of the use as a play place of the alleged attractive nuisance by the plaintiff’s intestate, a child, and/or by other children of such use being made thereof. In the case from which this class of cases takes its name, as the “turntable cases” (Sioux City and Pacific R. R. Co., Plff, in Error, v. Stout, by his next friend, 17 Wall., 657), it appears that children were known by the railroad company to play on the turntable. Brannon v. Sprinkle, supra. The judgment of the Superior Court is Affirmed.