Boyd v. Atlanta & Charlotte Airline Railway Co.

CONNOR, J. The plaintiff on his appeal to this Court contends that on the facts alleged in the complaint, and admitted by the demurrers, the defendants, and each of them, are liable to the plaintiff for the damages which he has suffered by the death of his intestate on the principle which was announced and applied by the Supreme Court of the United States in the Turntable case (R. R. v. Stout, 21 L. Ed., 745), and that for this reason the judgment dismissing the action should be reversed. This contention cannot be sustained. There was no error in the ruling of the court sustaining the demurrers, or in the judgment dismissing the action in accordance with such ruling. *396 The principle on which the Turntable case, supra, was decided was recognized by this Court as sound in Kramer v. R. R., 127 N. C., 328, 37 S. E., 468. It was held, however, that the principle was not applicable to the facts shown by the evidence in that case, for that the cross-ties by which the plaintiff was injured were not piled on the land of the defendant, but on a street on which the land of the defendant abutted. It is said in the opinion in that case that “the principle announced in the Turntable case, supra, would not apply if the ties had been carelessly piled on the defendant’s premises. The Turntable decisions are necessarily based either on the idea that such machinery has such peculiar attractiveness for children as objects of play that when left unlocked there is an implied invitation to use them, or when not properly guarded it is so obviously dangerous to children as to call for diligence in the owner to take precautions against the dangers. Those cases are exceptions to the general doctrine, and went to the very limit of the law. Mere attractiveness of premises to children will not bring a case within that exceptional doctrine. Indeed, the plaintiff’s counsel, in his argument here, stated that he did not contend for the application to this case of the principle laid down in the Turntable case, supra.” The soundness of the principle was conceded and its application in proper cases was approved in Briscoe v. Lighting and Power Company, 148 N. C., 396, 62 S. E., 600. However, it was held by this Court that the principle was not applicable in that case. It is said in the opinion that “it must be conceded that the liability for injuries to children sustained by reason of dangerous conditions on one’s premises is recognized and enforced in cases in which no such liability accrues to adults. This we think sound in principle and humane in policy. We think the law is sustained upon the theory that the infant who enters upon premises, having no legal right to do so> either by permission, invitation, or license, or relation to the premises or its owner, is as essentially a trespasser as an adult; but if to gratify a childish curiosity or in obedience to a childish propensity excited by the character of the structure or other conditions he goes thereon and is injured by the failure of the owner to properly guard or cover the dangerous conditions which he has created, he is liable for such injuries, provided the facts are such as to impose the duty of anticipation or prevision; that is, whether under all the circumstances he should have contemplated that children would be attracted or allured to go upon his premises and sustain injury.” It is further said in the opinion that “to allege simply that the machinery, including dynamos, engines, etc., in an attractive building in the populous portion of a city 'is calculated to attract and allure boys and others to see the machinery’ does not bring the case within the exception to the general principle. There is no suggestion that any boys had been at- *397 traded or allured, nor is it even averred that the plaintiff was on the premises to see the machinery.” In that case it was held that the demurrer to the complaint should have been sustained. A judgment o£ nonsuit was reversed in Starling v. Cotton Mills, 168 N. C., 229, 84 S. E., 388. In that case the plaintiff's intestate, a boy six years of age, fell into a reservoir on the defendant’s premises, and was drowned. The defendant had caused a fence to be constructed around the reservoir, but had failed to keep the fence in repair. Plaintiff’s intestate crawled through a hole in the fence and fell into the reservoir. There was evidence tending to show that plaintiff’s intestate and other children had been accustomed to play about the reservoir, and that the defendant knew of this custom, and because of this custom had caused the fence to be erected for the protection of the children. In the opinion in that case it is said: “It does not admit of debate that the fact that such a dangerous place was unguarded by a secure fence, where children of that age were allowed to play, was culpable negligence on the part of the officers of the defendant. The very fact that a fence had been put up of itself shows that these authorities were aware of the danger. To permit it to become dilapidated was negligence.” In Comer v. Winston-Salem, 178 N. C., 383, 100 S. E., 619, it is said: “In this case the city was responsible for not maintaining an efficient railing, which would have prevented this child from getting through and falling twenty feet below upon the concrete bottom of the extension of the culvert. A small mesh, strong wire fence would have prevented such danger as this, and would have saved the life of the little one whose death was caused by leaning over the railing, or getting through it, to look at the gurgling, many-hued ripplings of the stream below.” A judgment for the plaintiff was affirmed. The instant case is governed by the law as stated in Kramer v. R. R., supra, and in Briscoe v. Lighting and Power Company, supra. The facts alleged in the complaint and admitted by the demurrers do not bring this case within the class of cases which is governed by Starling v. Cotton Mills, supra, and Comer v. Winston-Salem, supra. The “attractive nuisance doctrine,” which is invoked by the plaintiff in this case, has been repudiated by a majority of the courts. In those courts in which the doctrine is recognized, it is said that “it needs very careful statement not to make an unjust and impracticable requirement.” See Lucas v. Hammond, 150 Miss., 369, 116 So., 536, 60 A. L. R., 1427. The judgment is Affirmed. OlakksoN and ScheNCK, JJ., concur in result.