April 11, 1922. The opinion of the Court en banc was delivered by The allegations of the complaint material to the questions involved, are as follows:
"(4) That a long time prior to the 28th day of July, 1919, the defendant, Seaboard Air Line Railway, constructed, or caused to be constructed, on its main line of railway, at or near the village of Lydia Cotton Mills, and over a running *Page 16 and natural stream of water and with culvert or viaduct to carry the water through said fill, and the said fill with culvert or viaduct was so carelessly and negligently constructed that the said culvert or viaduct was not of a sufficient size to carry the water through said fill, and, when the said stream was swollen by rains, it caused the water from said stream to rush through said culvert or viaduct with such terrific force that the said water cut or caused to be washed out on the lower side of said railroad track, and on the defendant Seaboard Air Line Railway's right of way, a hole which formed a pool of water, which hole and pool of water has grown in size from year to year, until on or about the 28th day of July, 1919, it was some 25 feet long, 12 feet wide, and ranged in depth from a few inches to 8 or 10 feet in places.
"(5) That said hole and pool of water is located in or near the thickly populated settlement of the Lydia Cotton Mills village, and is not protected by a fence or guard of any kind or otherwise, and is easily accessible to children, who, not knowing the danger, made use of it as a place of amusement.
"(6) That it is and was the duty of said defendants to cause the said hole and pool of water to be filled in, and to cause the culvert or viaduct through said fill to be made larger and of sufficient size to prevent a recurrence of a like washout, or, failing in this, to cause the said hole and pool of water to be securely protected, so that children resorting to it as a place of amusement would not be injured.
"(7) That the said hole of water is of no use or benefit to the said defendants, and is a nuisance, and this plaintiff is informed, and believes, that said hole and pool of water has been condemned by the officials of the County of Laurens, S.C. and that said defendants have been notified of such condemnation; that said defendants knew or should have known the dangerous and unprotected *Page 17 condition of said hole and pool of water, and that children resorted thereto as a place of amusement, which fact this plaintiff is informed and believes, and so alleges, has been time and again called to the attention of said defendants, with request that said hole and pool of water be drained and filled in; but that said defendants not regarding their duty in this respect, have carelessly, negligently, wilfully, and wantonly failed and refused to enclose and protect said hole and pool of water in any way and have carelessly, negligently, willfully and wantonly allowed said hole and pool of water to stand open and unprotected.
"(8) That on or about the 28th day of July, 1919, Henry Renno, plaintiff's intestate, a small boy, 9 years of age, while playing or swimming in said hole and pool of water was drowned."
The defendant, Seaboard Air Line Railway, demurred to the complaint, on the ground that the cause of action was solely against the defendant, Walker D. Hines, as Director General of Railroads. The demurrer was sustained, and he answered the complaint, denying the material allegations thereof, and setting up the defense of contributory negligence and wantonness on the part of Henry Renno, who was drowned. At the close of all the testimony the defendants' attorneys made a motion for a directed verdict, which was refused, except in so far as the right of the plaintiff to recover punitive damages was concerned. The jury rendered a verdict in favor of the plaintiff for $2,500. The defendant appealed upon exceptions which will be reported.
The defendants' attorneys in their argument make this statement:
"We will not argue the exceptions seriatim. The first nine exceptions assign error in refusing to direct a verdict for the defendants. The tenth exception makes the point that the Court is without jurisdiction of this kind of an *Page 18 action, it not being based on any common liability of the Director General of Railroads. The exception charging error in the charge of the presiding Judge raises the same question as the first nine exceptions, and, in addition, that said charge was on the facts. We will argue the exceptions under the general propositions."
Practically the first question in the case is whether there was testimony from which a reasonable inference could be drawn that the pond was such a nuisance as rendered the defendant liable in damages. Under the able charge of the Circuit Judge, the jury found that there was such testimony; the Circuit Judge, who saw the witnesses, so found, not only when he refused to direct a verdict in favor of the defendant, but likewise when he overruled the motion for a new trial.
We deem this an opportune time to call attention to the fact that the jury of 12 men, in a common-law case, for which the Constitution provides, has been regarded from time immemorial as better qualified to pass upon the facts of the case then even the Judge. And the presiding Judge, by reason of the fact that he heard the witnesses testify, and could judge of their credibility, had a better opportunity than the members of this Court to determine the proper inferences to be drawn from the testimony. Furthermore, as the jury and the Circuit Judge have found that there was such testimony, there is a presumption in this Court that the trial in the Circuit Court was free from error. Therefore the plaintiff occupies a more favorable position than he did in the Circuit Court, when the burden of proof rested upon him.
We shall proceed to reproduce so much of the testimony as is deemed necessary to show, not only that it was susceptible of a reasonable inference in favor of the verdict, but that it was sustained by an indisputable preponderance *Page 19 of the evidence, as well as showing recklessness on the part of the defendant.
J.C. Brewington, white, testified for the plaintiff:
"I live close to Lydia Mill; about 200 yards from the pond. Moved there last Christmas. The people of Lydia Mill were accustomed to walking on the track. Have seen them walking along the track from Lydia Mill to Clinton every day. Have seen children playing in this hole. I do not know how many times. I have seen have in there since the boy got drowned. I have seen six or seven little fellows in there. Some were small, and some were good size. Have seen the viaduct after a rain. A little while before the boy got drowned I saw the water within two or three feet of the top of the fill. It backed the water a good piece back, and in this condition the water went through the viaduct with great force, and blowed that pond and made it deeper. I took the boy out. The water was up to my chin."
J.C. Wilson, white, testified for the plaintiff:
"I live in the town of Clinton. Have lived there two years. Before that I lived at Lydia Mill for ten years. For about five years I lived about 200 yards from the hole — in the Brewington House. The fill was there then. This hole has been there ever since I knew about the place. After a rain it blows out. I have seen it over a man's head. Then it would fill up to waist deep. It would be over a man's head after the rain. The force of the water through the culvert washed the hole out. The water would be backed up on the other side of the fill. The culvert was not large enough to carry off the water. Then it would dam up. I have seen the water within two feet of the top of the fill. It would be forced through the culvert with great force. I have seen the children in washing in this hole before the boy was drowned. The hole varied in depth at different times. In case of a rain it *Page 20 would wash out deep. It varied from knee deep to over a man's head. Right up to the culvert it was always waist deep. I have run boys away from there. I considered it dangerous. If they could not swim, they would drown. The section master passes there every day. I could not say positively whether he has seen children there. I have seen them working near the pond while children were playing in it. I have run children away from there. I ran some little orphan boys away from there. The orphanage is about 1 1-2 miles from the pond. I reported this to Mr. Bland, of the orphanage. I tried to get the children to stay away. The hole was on the lower side of the railroad track. It often filled up. Lydia Mill is about one-fourth of a mile away. The fence crosses the lower edge of the hole. It is a three-strand barbed wire fence. You could go through it easily. It is Mr. Leake's fence and pasture. The fence does not protect the pond or keep the children out. I have seen railroad men clean underbrush from around there. The side of the fill is covered with honeysuckles."
Burn Ubanks, white, testified for the plaintiff:
"I have lived at the Clinton Mills for fourteen years. I lived at Lydia Mills about six years ago. I have been in washing with other boys in this pond. Went there with five boys once. It was seven feet deep then. Mr. Wilson and a railroad man ran me away from there. I was at the pond the day the boy got drowned, but after he was drowned, Mr. Wilson was not a railroad man, but a railroad man by the name of Adams ran me away from there. That was about six years ago. I could not tell you how deep the pond was on the 28th of July. I did not measure it. The general appearance of the pond the day Henry was drowned, and its general appearance six years ago, was about the same." *Page 21
J.C. Sparks, white, testified for the plaintiff:
"I live at Clinton. I have lived there and at Lydia about eight years. I was at Lydia three years ago. Live about one-fourth mile from the pond. Saw it at different times while there. We would pass by the pond going to town. The road passes by the pond on each side of the railroad. I have seen children in washing in the pond. About three times. Six in at one time, three at another, and four at another. I did not know them. They were from Lydia Mill. I helped to measure the pond a week or two ago. It is 52 feet long, 22 1-2 feet wide, and 5 1-2 feet deep. It is 26 feet from the center of the railroad to the center of the pond. I stopped there with them about five minutes. I do not know the name of any of the boys. It was the last year I lived at Lydia. I saw the boys in there. I knew it was dangerous. I went down and tried to get them away. I do not remember the time I found six there. They were all from Lydia except one, who was from the Old Mill. The Old Mill is about one mile from there."
J.C. Idler, white, testified for the plaintiff:
"I am chief engineer and master mechanic at Lydia Mill. I have been in this work for 30 years. I have been to this pond. I was there on the 12th of November and made measurements. From the center of the railroad track to where the culvert enters the pond is about 26 feet. The pond is 52 feet long, 22 1-2 feet wide, and 5 1-2 feet deep about the center of the pond. The culvert is three feet in diameter. Most of the underbrush has been cut away. The fill was covered with honeysuckle vines. The fence looked like it crossed the pond at the lower side. I worked for the railroad for three years as a mechanic."
N.C. Hughes, white, testified for the plaintiff:
"I am county highway engineer. Have been in that business 25 years. Attended college in North Carolina. *Page 22 Took up land drainage work, land surveying, then highway work, in which I have been engaged for five years. I have worked for the United States Government. Have had experience in estimating the size of culverts necessary to drain land. Examined the culvert in this case yesterday, and found it 36 inches in diameter. From the end of the culvert to the wire fence it is 36 feet. The pond extends from the end of the culvert to 10 feet beyond the fence. The water beyond the fence is shallow. I looked for the head of the stream. It is about one mile from the fill. The area drained by the branch above the stream is about five-tenths of a square mile, or 375 acres. I noticed the size of the stream. The culvert does not figure out to be large enough to carry away the water. According to my calculation, it would take an area of 16 square feet, a 4x4 boxed culvert, or a circular culvert over 48 inches in diameter. The area of the present culvert is a little over seven square feet. Over twice the size of the one there would be necessary. The result of using an insufficient size culvert is to increase the force of the water, and necessarily cause considerable erosion. The hole below the fill apparently was caused by the force and pressure of the water as a result of having too small a culvert. The culvert does not carry off the water. A 4x4 opening would create a very little pond. I would try to put it in a larger culvert if one placed in a thickly populated community is insufficient to take off the water, and cause a deep hole. I would try to make them too large instead of to small. Whether there would have been a pond below the culvert if they had put in a 4x4 opening would depend upon the grade of the outflow. There would have been none if the culvert had had a proper grade. I would say the culvert is not large enough, if water backs up within two feet of the top of the fill. Water so held back would rush through with great velocity. An abnormal rain might back up against the fill, *Page 23 even through a 4x4 opening. I made no special examination of the character of the soil. A 4x4 culvert would not make as great a hole as the one there now."
T.C. Godfrey, white, testified for the plaintiff:
"I was 12 years old on the 16th of last January. I went to the pond the day Henry Renno got drowned. I had been there once or twice before. Some of the boys went there on bicycles, and some of us cut through. I lived at Clinton, about 1 1-2 miles away by the road, but it is nearer when you cut through. Three or four went on bicycles, and one or two cut through. We call this the old baptizing hole. There were six boys there the day Henry got drowned. He was younger than I am. One of us could swim. It is not trouble to climb through the fence. It consists of three or four strands of wire. We went there to go in swimming. That is the only reason. We did not go down the railroad track, but cut through the pasture. I had been there before. John went in first. He could swim. John told Henry not to go into the deep part next to the railroad. The part below the fence was shallow. You could walk out to the fence. It was up to my neck at the fence. I told Henry if he wanted to go in to come down to the shallow part below the fence. He went in about middle ways of the fence, and where the pond begins at the culvert. It looked like a stepdown at that point, judging from the way John went in. Henry went in first. When he first stepped in, the water was chest deep. Then he went down. He came up three times. When he first got in the water, it was over his head. I then tried to save him. When we got to the side to go to him, he had come up the first time. John tried to get him. I then went up to a negro house and told a negro woman. Ike Simpson came down. I took a stick and tried to reach him. When I got to the side, he came up, and tried to get the stick. John came out and said he had pulled him. He *Page 24 got hold of the stick, and then went down three times. Did not come up again. When I saw he was not coming back up, I left. The other boys had gone. John and myself and a negro were left there. I went up to the cotton mill and told about it. The other boys had already told about it."
D.A. Timmons, white, testified for the defendant:
"I have been living in Clinton for five years. Previously I lived at Mountville 6 1-2 years. During that time I was section foreman for the Seaboard Air Line Railroad. My section covers 6 1-2 miles from Clinton, south, extending beyond Lydia Mill, and this hole on the side of the fill is in my section; and I have known the branch for ten years. I look after the track, but I did not put in the fill. I have seen the hole frequently, and have seen it when it was practically filled up. After a freshet it would blow out again. Sometimes it was deep and sometimes it was practically filled up. The fence has been there ever since I have known it. It fences in Mr. Leake's pasture. A lot of people use the pasture for their stock. I have seen children in there. At times the hole is pretty deep. I never have told them it was too deep for them to go there. I never made a statement at my house that my boy was going down there, and I had stopped him because I though it was dangerous. I said I heard my boy was going down there, and I did not want him to go in the water. I thought it might cause fever. I have heard that he had been down there. Knew that boys did go in there and knew at the time it was deep. I do not know whether I stopped my boy or not. I did not want him to go in. It is a running stream. I think there is danger from catching fever from a running stream at times. I do not think it was dangerous there. Ought not to go in there if they could not swim. It is dangerous for small boys who cannot swim to go in water over their heads. This fill could *Page 25 just as safely have a viaduct pipe under it 4x4 feet. Travel over the railroad would be just as safe. I have seen boys in swimming. They will go in swimming. I have four boys. The oldest is 25 years old, and the youngest 11 years of age. I told the youngest not to go in washing this year. Mr. Rhames came to my house and asked me if I had notified the Company about this hole. I told him I did not consider it dangerous, and did not consider anything should be done. An ordinary rain would come and fill it up. At times it was deep, and then it would practically fill up. That conversation was some time in the spring after the first of March. It was before I had this conversation that I told my boy not to go down to that hole. It was the summer the boy got drowned. I had seen children in the pond before the boy got drowned — the same summer and the summer before. I had seen them there every summer."
There are certain facts to which we desire to call special attention: (1) That the pond is 52 feet long, 22 1-2 feet wide, 5 1-2 feet deep, about the center thereof; (2) that the pond was situated in a populous locality; that it was sufficiently attractive to entice children from the orphanage at Clinton, the Lydia Mill, the Old Mill and other places; (3) That the defendant not only had notice of such facts as were sufficient to put him upon inquiry, which, if pursued with due diligence, would have led to actual knowledge, but, as a matter of fact, had actual notice through its agent, who refused to report the condition of the pond to the defendant; (4) that the nuisance was maintained exclusively by the defendant, that the only part of the pond which was dangerous was on its right of way; that the small part thereof — about ten feet — which was in Leake's pasture was shallow, free from danger, and the boys did not go in swimming, at that point; (5) that the defendant did not make any effort whatever to prevent boys *Page 26 from using the pond from swimming purposes; nor was the fence, through which the boys passed, built for the purpose of safeguarding the pond, but simply as an inclosure for his pasture by Mr. Leake.
In the case of Franks v. Cotton Oil Co., 78 S.C. 10;58 S.E., 960; 12 L.R.A. (N.S.), 468, it was held that the parents of an infant may recover for his death by drowning in a reservoir maintained by the Oil Company, unguarded, for use in its business, in an open field near the public highways, streets, and houses of a city where children of tender years are accustomed to resort for amusement.
The only material differences in that case and the one under consideration are: (1) That in the former the reservoir was used by the defendant in its business, while the defendant herein made no use of the pond whatever; and (2) that the pond was not dangerous all the time. The principles governing both cases are, however, the same.
"One who artificially brings or creates upon his own premises, any dangerous thing which from its nature has a tendency to attract the childish instincts of children to play with it, is bound, as a mere matter of social duty, to take such reasonable precaution as the circumstances admit of, to the end that they may be protected from injury while so playing with it, or coming in its vicinity." Thompson onNeg., § 1024.
"Liability in the turntable cases is strictly put upon the ground of implied invitation to children to come upon the premises in order to play there, the invitation being supposed to arise from the attractive nature of these dangerous engines. This hypothesis is hatched up to evade the obstacle which arises from the fact that the plaintiff is a trespasser. But it is unnecessary, as it is inadequate and artificial. Liability is to be ascribed to the simple fact that the defendant, in maintaining a dangerous agent from *Page 27 which harm may, under peculiar conditions, be expected to come, has the primary risk, and must answer in damages, unless a counter assumption of risk can be imposed on those who go there to play. 1 Street's Foundations of legalLiability, 160, 161.
"One doctrine under this head (Liability for Injuries to Children) is that, if a child trespass upon the premises of the defendant, and is injured in consequence of something that befalls him while so trespassing, he cannot recover damages unless the injury was wantonly inflicted or was due to the recklessly careless conduct of the defendant. This cruel and wicked doctrine, unworthy of a civilized jurisprudence, puts property above humanity, leaves entirely out of view the tender years and infirmity of understanding of the child, indeed his inability to be a trespasser, in sound legal theory, and visits upon him the consequences of his trespass, just as though he were an adult, and exonerates the person or corporation upon whose property he is a trespasser from any duty towards him, which they would not owe under the same circumstances towards an adult." 1Thompson on Neg., § 1026.
The foregoing and other similar authorities are cited with approval in Franks v. Cotton Oil Co., 78 S.C. 10;58 S.E., 960; 12 L.R.A. (N.S.) 468.
The failure of the defendant to abate the attractive nuisance (which was useless to him), by simply enlarging the culvert to a proper size manifests a reckless disregard of the rights of the children who might resort to the pond for pleasure. His Honor, however, charged that the plaintiff could not recover punitive damages, and that phase is not before this Court for consideration.
What has been said disposes of appellant's proposition that the facts of the case do not bring it within what is called the "turntable doctrine," or the "attractive nuisance theory." *Page 28
The appellant's attorneys have failed to satisfy this Court that there was prejudicial error on the part of his Honor, the presiding Judge, in charging on the facts as submitted by the eleventh and twelfth exceptions.
It is only necessary to refer to Section 10, Act Cong. 1918 (U.S. Comp. St. 1918, U.S. Comp. St. Ann. Supp., 1919 § 3115 3/4j) to show that the tenth exception cannot be sustained. That section is discussed in the case of Castle v. Southern Ry. Co., 112 S.C. 407;99 S.E., 846; 8 A.L.R., 959, and is as follows:
"That carriers while under Federal control shall be subject to all laws and liabilities, as common carriers, whether arising under State or Federal laws, or at common law, except in so far as may be inconsistent with the provisions of this Act or any other Act applicable to such Federal control or with any order of the President. Actions at law or suits in equity may be brought by and against such carriers and judgments rendered as now provided by law; and in any action at law or suit in equity against the carrier, no defense shall be made thereto upon the ground that the carrier is an instrumentality or agency of the Federal government. Nor shall any such carrier be entitled to have transferred to a Federal Court any action heretofore or hereafter instituted by or against it, which action was not so transferable prior to the Federal control of such carrier; and any action which has heretofore been so transferred because of such Federal control, or of any Act of Congress or official order or proclamation relating thereto, shall, upon motion of either party, be transferred to the Court in which it was originally instituted. But no process, mesne or final, shall be levied against any property under such Federal control."
Affirmed.
MESSRS. JUSTICES WATTS and WILSON, MEMMINGER, DeVORE, SEASE, MAULDIN, and TOWNSEND, Circuit Judges, concur. *Page 29
MR. JUSTICE MARION: I concur in the result of the majority opinion. I do not think the present case can be distinguished in principle from the previous decisions of this Court applying the principle of attractive nuisance. The facts made a case for the jury under appropriate instructions.
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