180 Ga. 153 | Ga. | 1934
O’Neal filed his petition against the Atlantic Coast Line Bailroad Company, seeking damages for the death of his eight year old son. A general demurrer to the petition was overruled by the trial court. The Court of Appeals rendered its decision, holding that the petition was sufficient as against general demurrer, and. affirming the judgment of the lower court. 48 Ga. App. 706 (172 S. E. 740). The case is before this court by writ of certiorari. The Court of Appeals laid down the following ruling : “Hnder the facts of this case it was a question for the jury to determine whether the defendant was negligent in piling logs and crossties adjacent to a public street in a city in such .a manner as to render them dangerous and liable to become dislodged when children played upon them, where it appeared that one of its servants was actually present when a child was injured, knew of the unsafe and dangerous condition of the pile of logs, and failed to warn the child of the danger or keep him away from the pile of logs.” In the opinion the court said: “It is alleged that the logs were negligently and dangerously piled adjacent to a public street, that an agent or servant of the defendant was actually present when
We think that the Court of Appeals was correct in holding that the allegations of the petition were insufficient to set out a cause of action upon the theory of “attractive nuisance.” An attractive nuisance is maintained where an owner keeps premises in such a state or condition as to lure and attract children to play upon or around some dangerous instrumentality; and of course, where such a state of facts exists, the owner or creator of such “attractive nuisance” owes a higher measure of duty to the public generally than it does where this principle is not applicable. Ferguson v. Columbus & Rome Railway, 75 Ga. 637. There are no allegations in the petition sufficient to show wanton or wilful negligence, or that defendant had knowingly allowed a hidden peril to exist. Southern Cotton-Oil Co. v. Pierce, 145 Ga. 130 (88 S. E. 672). It is usually wilful or wanton not to exercise ordinary care to prevent injury to a person who is actually known to be or reasonably expected to be within the range of a dangerous act being done. Ashworth v. Southern Railway Co., 116 Ga. 635-638 (43 S. E. 36, 59 L. R. A. 592). But the petition nowhere alleges that a dangerous act was being done. It alleges that logs were piled upon the premises in a dangerous manner; but it must be borne in mind that the condition of the logs would not injure or harm any one without the intervention of some active force. This phase of liability or non-liability on the part of the owner has been discussed in many jurisdictions. In Hannan v. Ehrlich, 102 Ohio St. 176 (131 N. E. 504), it was held that “Greater care and caution should be exercised to prevent injuries to children upon premises where dangerous active operations are carried on than upon premises containing a visibly dangerous statical, condition.” It was also said “A well-defined distinction runs through the cases, between injuries caused by a dangerous statical condition and premises where dangerous active operations are being carried on.” From Savannah &c. Railway Co. v. Beavers, 113 Ga. 398, 404 (39 S. E. 82, 52 L. R. A. 314) : “If the child, upon entering on the premises, is hurt
Under the facts alleged in the present case, did the company owe to the child the duty it would owe to a trespasser, a licensee, or an
Judgment reversed.'