Thompson v. Illinois Central R.

Cook, J., delivered the opinion of the court. Appellant in her declaration states, in June, 1911, the appellee railroad company constructed a dam, which formed a pond or lake of water, covering something like one hundred acres of land, in the woods adjoining its main line, in the northern suburbs of the city of Me-Comb, and a half mile from the residence portion of the city; that there had been a branch or ditch running through the land covered by the lake, and that defendant caused deep and dangerous holes to be left in the said branch by the backing up of the water in the branch or ditch bed; that the lake so formed was uninclosed, and was open and without warning or trespass signs. It is further charged, prior to the time said lake was — 647 — formed, Meredith. Thompson, the infant child of plaintiff, nine years of age, cnstomarily passed along a public pathway on the said lake or pond; that after the lake was formed it was the custom of children to wade in the lake, and that this was permitted by the agents of the appel-lee; and that the railroad could have seen children wading in the lake daily, had they kept a watchman at the lake. On July 20, 1912, the boy, “ Meredith Thompson, who walked along the said pathway by said pond or lake with other children, and was attracted to and impliedly invited to said pond or lake, and with other children waded in said pond or lake, and into one of said dangerous holes, was drowned.” A demurrer was interposed to this declaration, and sustained by the trial court, and this appeal challenges the correctness of the judgment sustaining the demurrer. A map of the locus in quo is filed with the declaration, and from this map we gather that the lake or pond covered an area of about eighty acres, and that the water line followed the irregular meander line of the natural elevations of the land. The branch or ditch winds along over this territory, following a generál course from southwest to northeast. The pathway mentioned in the declaration does not appear upon the map, and it is impossible for us to tell how far the boy strayed from the water’s edge to the point where he was drowned; but, assuming that the boy entered the pond at a point nearest to the place where he was drowned, he must have waded at least two hundred and fifty feet from the edge of the water in order to reach the “deep hole” where he was drowned. It is stated in the declaration that the place where the boy was drowned is about five hundred yards from the railroad line, and the map shows this estimate of distance to be about right. From the map and the averments of the declaration the state of case the court is called upon to decide is about this: The appellee, a railroad company, in the conduct — 648 — of its business, purchased one hundred acres of woodland a half mile from the residential portion of the city of McComb, and by building a dam across the natural drainage of this land they impounded the water therein, forming thereby the lake in question. The nine-year-old son of appellant and other boys were in the habit of wading in this pond, which fact was known to the agents of ap-pellee, or would have been known, had appellee placed a watchman over this uninclosed lake. On July 20,1912, the boy waded at least two hundred and fifty feet in the water, stepped into a “deep hole” in the original drainage ditch or branch, and was drowned. It is contended that the pond as maintained was dangerous and attractive to children, and that the law imposed upon appellee the duty to guard same, either by inclosing it with a fence or wall, or .by providing a watchman to warn children of the hidden dangers, and to prevent them from wading in the pond, and, having failed to do either of these things, the railroad company is liable in damages to the mother of the boy, nine years of age, who came to his death by reason of the company’s negligence. TÓ support this view of the law the following cases decided by this court are cited, viz.: Mackey v. Vicksburg, 64 Miss. 777, 2 South. 178; Spengler v. Williams, 67 Miss. 1, 6 South. 613; Temple v. Electric Light Co., 89 Miss. 1, 42 South. 874, 11 L. R. A. (N. S.) 449, 119 Am. St. Rep. 698, 10 Ann. Cas. 924. The court’s opinion in Mackey v. Vicksburg is as follows : “It is averred in the declaration, and the demurrer admits it to be true, that the defendant deposited the dirt cut from the hill upon the rear of the plaintiff’s lot, by means whereof he was enabled and invited to escape from his inclosure and to go upon the precipitous and dangerous path cut along the hill, and leading from the place of escape to the point of danger from which he fell. ’ ’ As we construe this case, the declaration averred that the city constructed a pathway onto and leading from the — 649 — home of the six-year-old plaintiff to a precipitous eminence seventy-five feet high, from which plaintiff fell and was injured, the court saying: “If the defendant by the exercise of reasonable forethought could have anticipated the probability of the child’s action, it should have guarded against the danger by removing the earth or obstructing the pathway.” In Spengler v. Williams the sole and only point submitted to the court by the briefs of counsel was the failure of the plaintiff to establish by specific proof “that the defendant knew that piling lumber in the street would attract children, or in fact that it was calculated to entice them to play around it,” and all the court said was addressed to that point. However, we think the court did decide that the jury was entirely justified in deciding without specific proof that the defendant by the exercise of reasonable forethought should have reasonably anticipated that the lumber pile would probably have attracted children; and this is undoubtedly true. Coming now to Temple v. Electric Light Company: In this case the declaration averred that “the defendant, in transmitting electricity, which it knew to be a dangerous agency, through a thickly settled part of McComb city, negligently removed the insulation from its wires at a place where they passed through the limbs of a tree, which had numerous branches extending almost to the ground, and in which plaintiff and other children played, and that by reason of the removal of the insulation from the wires they thereby became dangerous, while, if properly insulated, they would have been harmless, and that plaintiff, being ignorant of their dangerous condition, while climbing among the branches of the tree, came in contact with an uninsulated wire and received the injuries of which complaint is made. The defendant demurred to the declaration, because it failed to aver (1) that defendant had reason to believe that the wires were constructed in such place and manner as to result in in — 650 — jury to plaintiff or anyone else; (2) that it was through the fault of defendant that plaintiff was injured, but, on the other hand, the declaration shows that it was through the fault of plaintiff that the accident occurred. ’ ’ It will be noted that the court in this case was dealing with a case involving negligence in the handling of one of the deadliest agencies — electricity—and the crux of the decision may be found in the last crisp and forceful sentence of the opinion, viz.: “This court, so far as the exertion of its power in a legitimate way is concerned, intends to exert that power- so as to secure, at the hands of these public utility corporations, handling and controlling these extraordinarily dangerous agencies, the very highest degree of shill and care.” The .‘decision in this case meets with our entire approval, and the rule therein announced need not be confined to “public utility corporations,” but is applicable to all handling “these extraordinarily dangerous agencies.” We think it clear that the three cases decided by this court are all sound in principle, and it may be, as contended by appellant, that they commit this court to the doctrine announced in the turntable cases. Independent of authority, we believe these cases are based on the principles of simple justice, and that they will appeal to the common sense of all intelligent thinkers. In each of the cases the injury might have been reasonably anticipated as probable, and the court only required the defendants to take reasonable precautions, which would have prevented the injuries complained of, and compliance with the precautions would have been entirely feasible. In the instant case there was no enticing of appellant from his very dooryard, and providing for him a continuous pathway to the obviously dangerous place, as in the Mackey case; nor was there any use of the public thoroughfare of a populous city for the setting of an inviting and manifestly dangerous trap for children at a. place where they were accustomed to go, and where the — 651 — very natural and probable result followed the careless indifference of the defendant, as in the Spengler case. Again, we have no case involving the careless handling' of electricity in the streets of a city at a place where the instincts of a natural and healthy hoy would carry him, as was the ease in the Temple case. Here we have a generally shallow body of water covering a large area in the woods, a half mile from the inhabited parts of the town, wherein boys waded, and wherein appellant’s boy was drowned. We think it must be conceded that this deplorable tragedy could not have been anticipated as probable by the exercise of reasonable forethought, nor could it have been prevented by any reasonable precautions. Of course, one could have anticipated the possibility of this sad event; but we think the danger was comparatively remote. Scattered over the length and breadth of the land are innumerable ponds and lakes, artificial and natural; and occasionally a boy or man loses his life while wading, or bathing, in such body of water. If, as a matter of law, the owners of fish ponds, mill ponds, gin ponds, and other artificial bodies, wherein it is possible that boys may be drowned, can be held guilty of actionable negligence unless they inclose or guard same, few will be able to maintain these utilities, and to our minds an intolerable condition will be created. In the case of Peters v. Bowman, 115 Cal. 345, 355, 47 Pac. 598, 599 (56 Am. St. Rep. 106), which was one where a boy had been drowned in an unguarded pond on private property, the court, in holding the owner not liable, stated the distinction in these words: “A turntable is not only a danger specially created by the act of the owner, but it is a danger of a different kind to those which exist in the order of nature. A- pond, although artificially created, is in nowise different from those natural ponds and streams which exist everywhere, and which involve the same dangers and present the same appearance and the same attractions to children. A turntable can be ren — 652 — dered absolutely safe, without destroying or materially impairing its usefulness, by simply locking it. A pond cannot be rendered inaccessible to boys by any ordinary means. Certainly no ordinary fence around the lot upon which a pond is situated would answer the purpose; and therefore, to make it safe, it must either be filled or drained, or, in other words, destroyed.” With the exception of the excerpt from the opinion in the California case, we have confined ourselves to the decisions of our own court, and do not think it necessary or adviasble to discuss the conflicting decisions of other courts upon questions similar to the one under review. We do not recede from the principle announced by this court in Dampf v. Y. & M. V. R. R. Co., 95 Miss. 85, 48 South. 612; but the law arises out of the facts of each case, and under the averments of the declaration in the instant case, we are of opinion that no negligence can be imputed to appellee. Affirmed.