48 Ga. App. 706 | Ga. Ct. App. | 1934
C. C. O’Neal brought suit against the Atlantic Coast Line Bailroad Company, seeking damages for the death of his eight-year-old son. He alleged that his son was killed by reason of the negligence of the defendant in piling certain cross-ties and logs on its right of way adjacent to a public street in the city of Blackshear in such a manner as to cause them to become easily dislodged. He alleged that for many years it had been the custom of the defendant to pile logs and cross-ties at this point; that children had been accustomed to play thereon for a long time, climbing upon and playing around them; that on July 20, 1932, his son came to this pile of logs while on an errand for his mother and stopped there to play; that this pile of logs had been inspected by a servant and agent of the defendant, one Leggett; that petitioner’s son was attracted to said logs and thereby induced to play thereon; that defendant’s said servant was present at the time and knew that petitioner’s son and other children of immature years were playing upon said logs; that on said date the logs were not piled straightly and uniformly and were not tied or fastened, and one of them was lying at an angle or crosswise with the others; that defendant’s said servant knew this, but did not warn petitioner’s son of the danger, but permitted him and the other children to continue to play thereon; that the log lying.crosswise became unbalanced in some manner and rolled over and -upon petitioner’s son, killing him; that the pile of logs, under the circumstances, amounted to the maintenance of an attractive nuisance; that the fact that it was attractive to children and dangerous to them and that children were accustomed to play there was fully known to the servants and agents of the defendant, and the duty devolved upon the defendant to protect chil
The attractive-nuisance doctrine, sometimes called the “turntable doctrine,” is that, when a person, who has an instrumentality, agency or condition upon his own premises, or who creates such condition on the premises of another, or in a public place, which may reasonably be apprehended to be a source of danger to children, is under a duty to take such precautions' as a reasonably prudent man would take to prevent injury to children of tender years whom he knows to be accustomed to resort there, or who may, by reason of something there which may be expected to attract them, come there to play; or, as has been defined, “One who maintains dangerous instrumentalities or appliances on his premises of a character likely to attract children in play, or who permits dangerous conditions to remain thereon with the knowledge that children are in the habit of resorting thereto for amusement, is liable to a child non sui juris who is injured therefrom.” Mattson v. Minnesota &c. R. Co., 95 Minn. 477 (104 N. W. 443, 70 L. R. A. 403, 111 Am. St. R. 483, 5 Ann. Cas. 498). The doctrine was recognized in this State in Ferguson v. Columbus &c. R. Co., 75 Ga. 637, s. c. 77 Ga. 102. In Carter v. LaMance, 40 Ga. App. 695 (151 S. E. 406), where a child was injured by an unlocked and unguarded- merrygoround, the above doctrine was held applicable. In that case it was said “defendants in error insist that the doctrine of the ‘turn-table cases’ should not be extended; but even if this were true it is not necessary to extend this doctrine in order to bring the instant case within it. Nor does the statement that it ‘will not be extended’ mean that it will not be applied.” The opinion in the case of Savannah &c.
If it is not made to appear that the defendant had knowledge, actual or imputed, of the presence of the injured child, a recovery should not be permitted. If the place or appliance can not be said to possess a quality calculated to attract children general^, it must be shown that to the defendant’s knowledge the injured child or others were in the habit of using it. Whether or not in any particular case the defendant knew of the presence of the children, or should have foreseen their presence because of the allurement of his place or appliance, and whether with such knowledge he ought to have guarded or fenced the place or appliance, are questions for the jury to determine. See 20 R. C. L. § 73. It must be remembered that it is distinctly alleged that it was the custom of children to play upon these logs, that they were piled adjacent to a public street and in a dangerous manner, that the servants and agents of the defendant knew of this custom, and that one of the defendant’s agents and- servants was actually present at the time and saw plaintiffs son playing, with other children, upon these logs, and, knowing
However, we all agree to the result reached in the case, — that is, that the court below did not err in overruling the general demurrer to the petition. If any part of a petition sets forth a good cause of action, it is not subject to general demurrer. 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 the plaintiff’s child was playing upon these logs, actually saw him playing thereon, knew of the unsafe and dangerous condition of the logs, and failed to warn said child or keep him from playing upon the logs, and as a result thereof the child was killed by the: logs rolling upon him. In these circumstances, the petition set forth a cause of _ action upon this theory, and the court below correctly overruled the general demurrer.
Judgment affirmed.