177 S.E. 1 | N.C. | 1934
CLARKSON and SCHENCK, JJ., concur in result. This is an action to recover damages for the death of plaintiff's intestate.
The plaintiff is the duly qualified administrator of Violet Overcash, who died in Gaston County, North Carolina, on 16 June, 1929. *391
This action was begun in the Superior Court of Mecklenburg County within one year after the death of plaintiff's intestate.
The allegations of the complaint on which the plaintiff seeks to recover in this action are as follows:
"19. That on 16 June, 1929, Violet Overcash, a child less than eight years of age, in company with another girl of about the same age, left her home in the town of Cramerton, where her father lived, in a house belonging to the defendant Cramerton Mills, Incorporated, and wandered away to and got upon the south, or west, end of the railway bridge belonging to the Atlanta and Charlotte Airline Railway Company, as owner, and to the Southern Railway Company, as lessee, which said bridge spans the South Fork of the Catawba River, as hereinbefore mentioned, said bridge having no guard rails, fence, or other equipment along the side thereof; and said children continued to walk along and over said railway bridge until they had reached a point near the center thereof.
"20. That when Violet Overcash and her companion had reached a point near the center of said bridge they began to look at, and gaze upon, the broad expanse of water stretching away on both sides of said bridge, and Violet Overcash and her companion began throwing into the water far below, to see it splash, the small crushed stone used for ballast by the defendants Atlanta and Charlotte Airline Railway Company and the Southern Railway Company, and each of them.
"21. That while Violet Overcash and her companion were about their childish play, and while attempting to throw the small pieces of crushed stone into the water beneath the bridge, as hereinbefore described, the said Violet Overcash lost her balance, stumbled and fell from the top and over the edge of said railway bridge, a distance of 45 or 50 feet, into the waters beneath thereof, and was drowned. That for a period of many hours thereafter vain attempts were made to recover her body, so deep was the water into which she fell.
"22. That the death of plaintiff's intestate, Violet Overcash, was the direct and proximate result of the wilful, wanton, and negligent acts and gross carelessness of the defendants, and was due solely, brought about, and caused by the joint and concurrent negligent acts and omissions of the defendants, and each of them.
"(a) In that the defendant Duke Power Company built and constructed, or owns and controls, the dam across the South Fork of the Catawba River, which said dam serves no purpose whatsoever in generating electric current for said defendant, nor was it intended so to do, and dammed, backed up, and impounded the waters of the South Fork of the Catawba River, along the channel of said stream, and far out over the lands adjacent thereto, and upon, over, and across the lands *392 belonging to the Cramerton Mills, Incorporated, and upon, over, and across the lands and right of way of the defendants Atlanta and Charlotte Airline Railway Company, as owner, and of the Southern Railway Company, as lessee, said water so dammed, backed up, and impounded being in varying depths, and having a maximum depth of eighteen or twenty feet, and said waters are near by and in close proximity to and within a few feet of the dwelling-houses belonging to the defendant Cramerton Mills, Incorporated, and in which a great many of the operatives of said manufacturing plant live, and did live on the date hereinbefore mentioned;
"(b) That the Duke Power Company, at all times herein mentioned, maintained said dam as hereinbefore alleged, well knowing that said waters of the South Fork of the Catawba River were backed up to and near, and within a few feet of, many of the homes of the operatives of the Cramerton Mills, Incorporated, and when it knew, or by the exercise of ordinary care and observation upon its part could have known, and did know, that in a great many of said homes there were children of tender years, and who were totally lacking as to a sense of the danger connected with said waters, and well knowing at all times that to go in and play about waters of the kind and character herein mentioned was a weakness of a child's mind;
"(c) That the defendant Duke Power Company backed up and impounded the waters of the South Fork of the Catawba River upon, over, and across the lands and right of way of the Atlanta and Charlotte Airline Railway Company, as owner, and of the Southern Railway Company, as lessee, and underneath the bridge supporting the tracks of said defendant, when it knew, or by the exercise of ordinary care, caution, observation, and prudence upon its part could have known, and did know, that many of the children in the town of Cramerton, and especially those nearby, would be attracted to, play about, on, over, and upon the bridge belonging to said railway defendants herein mentioned, and when it knew that there was nothing more attractive to a child's mind than just such a scene as is viewed from the top of said bridge;
"(d) That the Duke Power Company maintained said dam and backed up and impounded the waters of the South Fork of the Catawba River to a great depth over and across the right of way, and underneath the bridge belonging to the Atlanta and Charlotte Airline Railway Company, as owner, and to the Southern Railway Company, as lessee, when it knew, or by the exercise of ordinary care, caution, observation, and prudence could have known, and did know, that there were many homes in which there were children of tender years near and in close proximity to said bridge belonging to the railway defendants herein mentioned, and that said bridge had no guard rails, fence, or other means to prevent *393 children that might wander upon said bridge from falling from said bridge and into the waters beneath thereof, and being drowned, in the way and manner in which plaintiff's intestate was in fact drowned, and when said defendant knew, or by the exercise of ordinary care, caution, and prudence upon its part could have known, and did know, that said railway bridge, in its unguarded condition, and the waters beneath thereof, was such an attractive place as to invite and cause small children to go upon said bridge and be and become a place of great hazard and danger;
"(e) That the defendant Cramerton Mills, Incorporated, permitted the Duke Power Company to dam, impound, back up, and overflow its said lands adjacent to and nearby its said mill village, and said waters so backed up and impounded was done with its full knowledge, consent, and approval, and more especially did said defendant permit said Duke Power Company to dam, back up, and impound said waters upon its premises, at and near the railway bridge belonging to the Atlanta and Charlotte Airline Railway Company, as owner, and to the Southern Railway Company, as lessee, and nearby and in close proximity to the homes of its operatives, wherein were many children of tender years, when it knew, or by the exercise of ordinary care, caution, and prudence upon its part could have known, and did know, that said waters so backed up and impounded were dangerous to the life and limb not only of plaintiff's intestate but to the other children of said town of Cramerton as well;
"(f) That the defendant Cramerton Mills, Incorporated, permitted the Duke Power Company to dam, back up, and impound the waters of the South Fork of the Catawba River, across and over its said premises, and near to and under the railway bridge hereinbefore mentioned, when it knew that many of its houses, occupied by its operatives and their families, were near and in close proximity to the south, or west, end of said railway bridge, and when it knew, or by the exercise of ordinary care, caution, and prudence upon its part could have known, and did know, that there were no guard rails, fence, or other means to prevent children of tender years from going upon said bridge and falling therefrom, in the way and manner in which plaintiff's intestate did go upon said bridge and fell therefrom, and when it knew, or by the exercise of ordinary care and prudence could have known, that said railway bridge so located, and the waters beneath thereof constituted such a place as would attract children of tender years;
"(g) That the defendants Atlanta and Charlotte Airline Railway Company, as owner, and the Southern Railway Company, as lessee, permitted the Duke Power Company to dam, back up, and impound the waters of the South Fork of the Catawba River, over, across, and *394 upon its lands and right of way, and underneath the bridge supporting their railway lines, to a great depth, in, near, and adjacent to the town of Cramerton, and near the homes of the residents thereof, when they, and each of them, knew, or by the exercise of ordinary care, caution, and prudence upon their part could have known, and did know, that in said homes there were many children of tender years;
"(h) That the defendants Atlanta and Charlotte Airline Railway Company, as owner, and the Southern Railway Company, as lessee, built and constructed, or caused to be built and constructed, said railway bridge across and over the South Fork of the Catawba River at, near, and adjacent to the town of Cramerton, and the south, or west, end of said bridge was nearby and in close proximity to the homes of many of the residents of said town, and said bridge so built and constructed was forty or fifty feet above the waters underneath thereof, and on each side of said bridge was a raised section of concrete, about thirty-six inches in width, which was used as a walkway by the public in general in passing to and from the town of Cramerton to and from the Eagle Mills, and the town of Belmont, Gaston County, North Carolina, which the defendants, and each of them, well knew, or by the exercise or ordinary care, caution, and prudence upon their part could have known, and this plaintiff is informed, believes, and alleges that said sections were so used with the full knowledge, consent, and approval of said defendants, and each of them;
"(i) That the defendants Atlanta and Charlotte Airline Railway Company, as owner, and the Southern Railway Company, as lessee, on the date hereinbefore mentioned had no guard rails, fence, or other equipment along the concrete sections, or walkways, which were located on each side bridge, to prevent anyone who might go upon said bridge from falling therefrom and into the waters below, when they, and each of them, knew, or by the exercise of ordinary care, caution, and prudence upon their part could have known, and did know, that owing to the closeness of said bridge to many of the homes in the town of Cramerton, and in which children of tender years lived, that said children would go upon and play about said bridge, and when they knew, or by the exercise of ordinary care, caution, and prudence upon their part could have known, that said children going upon and playing about said bridge might and would fall therefrom and be killed, in the way and manner in which plaintiff's intestate in fact was killed;
"(j) That the defendants Atlanta and Charlotte Airline Railway Company, as owner, and the Southern Railway Company, as lessee, owned and maintained said bridge hereinbefore mentioned without any guard rails, fence, or other equipment along the edges or sides thereof, when they, and each of them, knew, or by the exercise of ordinary care, *395 caution, and prudence upon their part could have known, and did know, that owing to the view from the top of said railway bridge, and the broad expanse of water surrounding same, that the children in the homes hereinbefore mentioned would be attracted thereto and thereon, and would throw, or attempt to throw, the small crushed stones into the waters beneath, and that said children, in attempting to throw said stones, might and would fall into said waters and be drowned, in the way and manner in which plaintiff's intestate fell from said bridge and was drowned, and when they knew that said railway bridge, in its unguarded condition, was dangerous and hazardous, and was a veritable death-trap for any child or children that might wander upon or be attracted to said bridge."
Each of the defendants filed an answer to the complaint, in which all the allegations therein relied on by the plaintiff as stating facts sufficient to constitute a cause of action against the defendants, or either of them, are denied.
After the action was called for trial but before a jury was impaneled, each of the defendants demurred ore tenus to the complaint on the ground that the facts stated therein are not sufficient to constitute a cause of action against the defendants, or either of them. The demurrers were sustained, and the plaintiff duly excepted.
From judgment dismissing the action the plaintiff appealed to the Supreme Court, assigning as errors the rulings of the court upon the demurrers, and the judgment dismissing the action in accordance with such rulings.
The plaintiff on his appeal to this Court contends that on the facts alleged in the complaint, and admitted by the demurrers, the defendants, and each of them, are liable to the plaintiff for the damages which he has suffered by the death of his intestate on the principle which was announced and applied by the Supreme Court of the United States in the Turntable case(R. R. v. Stout,
The principle on which the Turntable case, supra, was decided was recognized by this Court as sound in Kramer v. R. R.,
The soundness of the principle was conceded and its application in proper cases was approved in Briscoe v. Lighting and Power Company,
A judgment of nonsuit was reversed in Starling v. Cotton Mills,
In Comer v. Winston-Salem,
The instant case is governed by the law as stated in Kramer v. R. R.,supra, and in Briscoe v. Lighting and Power Company, supra. The facts alleged in the complaint and admitted by the demurrers do not bring this case within the class of cases which is governed by Starling v. CottonMills, supra, and Comer v. Winston-Salem, supra.
The "attractive nuisance doctrine," which is invoked by the plaintiff in this case, has been repudiated by a majority of the courts. In those courts in which the doctrine is recognized, it is said that "it needs very careful statement not to make an unjust and impracticable requirement." See Lucasv. Hammond,
The judgment is
Affirmed.
CLARKSON and SCHENCK, JJ., concur in result. *398