Comer v. City of Winston-Salem

Clark, O. J. This case, in many respects, is a stronger case for plain- • tiff than Starling v. Cotton Mills, 171 N. C., 222, in which there was a reservoir near a cotton mill around which the children of the employees were in the habit of playing, and there was the protection only of a fence, which, becoming dilapidated, a child got through, and falling into the water, was drowned. The Court held, in that case, that it was the negligence of the owners of the mill that the fence was defective. 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. As was well said by Mr. Justice Walker, in Ferrell v. Cotton Mills, 157 N. C., 540: “The doctrine which imputes negligence (to the parents) in such a case is repulsive to our natural instincts, and repugnant to the condition of that class of persons who have to maintain life by daily toil.” Again, on page 541, he said: “If parents are negligent in permitting children to play out of doors on public ground in the day time, unattended by the parents themselves or others, 'then, in the majority of eases, it will be necessary to go out of the business of raising or attempting to raise children, because parents cannot be with children at all hours of the day, neither is it practical to employ others to be with them to guard against unseen dangers.” ' It is alleged in the complaint, and admitted in the answer, that the bridge over the culvert, with the approaches, being a part of the street, is about 40 to 45 feet long and 40 feet wide; that ón each side of the culvert, for about 45 feet, till the street strikes level land at each end, there are posts several feet apart of concrete, and in these are inserted two parallel iron pipes, about an inch and a half in diameter, the lower pipe being 11 inches from the top of the culvert and the upper pipe being 17 to 18 inches above this. There was evidence that since the construction of the culvert the street at that place has been especially attractive to children, who lean over the banisters to see the water as it rushes out at the southern end of the culvert, and it was while looking at the *386 water, and probably by getting over, or under, tbe bottom -pipe, tbat tbe ■child fell 20 feet on tbe cement extension and its skull was crushed, causing almost instant death, tbe water at tbe time being about 3 inches deep." Tbe culvert is about 200 feet from plaintiff’s bouse, and is near a number of bouses in tbe community, it being in a residential and thickly-settled section, adjoining tbe playground where tbe children of tbe neighborhood were accustomed to gather. A child cannot be kept in tbe bouse at all times, neither can it be chained, and if not allowed to play in tbe open, which necessarily means, in a city which is crowded, that it must play at times in the street, the children could not be raised, as light, air and exercise are absolutely necessary for their development. There was ample evidence upon which the jury have found that the^ parents were not-guilty of contributory negligence on this occasion. The little child went off with its little playmate to the playground of the neighborhood, where the children were known to be in the habit of gathering. It had only been gone a few moments while the busy mother was engaged in cooking dinner when the fatal accident occurred. The plaintiff did not claim that the bridge was defective, but relied upon the fact that the authorities knew that the rippling of the water and its many-hued colors attracted the children, and that for twenty years the locality adjacent had been a playground for them, and with knowledge of the natural curiosity of children in such cases, more sufficient protection should have been placed at that point. Certainly the evidence should have been submitted to the jury upon the fair and impartial charge of the judge. This is not even the case of an “attractive nuisance” on the property of another, which would render that other liable if not sufficiently protected. A silent turntable on the property of a railroad would not attract the attention of children as irresistibly as their irrepressible curiosity would tempt them to investigate the cause of the gurgling of the many-hued water, which rushed from under the bridge 20 feet below the point at which they would attempt to see it. The bridge was not an attractive nuisance. It was not a nuisance at all. It was a necessary structure for the use of the city. But the noise made by the gurgling of the water- would move children to wish to investigate the cause. There was no conflict of evidence that, as stated in the brief of the defendant, “for 20 years or more the children had been in the habit of playing in the vacant ground near by, and also coasting down the sidewalk on Vest Street, which sloped to the bridge, and also frequently played around and on the bridge.” The negligence was not in the grade of the street, nor in the bridge or culvert, but in the want of sufficient protection for the children of the neighborhood frequenting that spot. *387 This little child was accompanied to the spot by his little playmate, who doubtless had told him of the wonders of this many-colored stream roaring out from under the bridge. Travelers in Europe go miles to see “The blue rushing of the arrowy Rhone” {Byron). Men cross the oceans to behold the swirl of waters at Niagara, and to see a mightier river dash itself into mist at the falls of the Zambesi, and to the childish mind this many-hued, gurgling water, viewed from a heighth of 20 feet, was as sufficient to compel this trip of 200 feet. The nonsuit was properly denied. There was evidence to go to the jury upon the issues submitted to them. The defendant objected that evidence was admitted that while the bridge was being constructed a witness had a conversation, in 1917, with the engineer supervising the work in which the witness told him that he was putting up a trap to catch children, and the engineer replied that he was instructed to build it in that manner, but thought it dangerous himself. This exception, however, and the other exceptions as to evidence in regard to the contract under which the bridge was built, might be material if there was any defect alleged in the construction of the bridge, but the ground of the complaint is that the street at this point over the trestle, with the precipice of 20 feet at a point where children were accustomed to gather, and which was especially attractive to them, required that the city should have put up a stout wire fence or other guard after the culvert was built, that would keep young children from getting through the open work railing with liability of such fatal accidents as this. The negligence is not in the construction of the bridge, but in failing to have a protection of this kind against such danger as this, and the jury found that the city was negligent in this respect. The defendant well says, in its brief: “No matter who builds a bridge in the .•street, the municipality is responsible for its condition and method of construction from the standpoint of safety.” If, therefore, it was error to admit the evidence objected to, it was harmless error, for the condition •of the street and the lack of precaution for safety of children was the negligence of the city. The defendant also objects to the charge of the court upon the measure ■of damages, which seems to have been, in effect, taken from that which was approved in Mendenhall v. R. R., 123 N. C., at p. 278, as follows: “The measure of damages is the present value of the net pecuniary worth •of the deceased, to be ascertained by deducting the cost of his own living and expenditures from the gross income based upon his life expectancy. As a basis on which to enable the jury to make this estimate, it is competent to show, and for them to consider the age of the deceased, his prospect in life, his habits, his character, his industry and skill, the means *388 be bad for making money, tbe business in wbicb be was employed — tbe end of it all being to enable tbe jury to fix upon tbe net income wbicb might be reasonably expected if death bad not ensued, and thus arrive at tbe pecuniary worth of tbe deceased to bis family. Tou do not undertake to give tbe equivalent of human life. You allow nothing for suffering.” This charge is in accordance with many other decisions. Benton v. R. R., 122 N. C., 1007; Coley v. Statesville, 121 N. C., 301; Pickett v. R. R., 117 N. C., 616. In Watson v. R. R., 133 N. C., 191, tbe Court reviews these charges and approves them. In Poe v. R. R., 141 N. C., 525, on wbicb tbe defendant relies, tbe court read to tbe jury tbe annuity table, but this was not done in tbe ■present instance by tbe judge, who simply gave them tbe mathematical rule prescribed in tbe above cases, and illustrated it to aid tbe jury in arriving at tbe present value of tbe loss sustained in tbe death of tbe plaintiff’s intestate. No error. Walker and AlleN, JJ., dissenting.