34 So. 2d 363 | Miss. | 1948
An action was brought in the Circuit Court of Lauderdale County by the heirs of Billie Mitchell Barnhill, demanding damages for his death by drowning in an old vat which had been built in connection with a former bleaching plant, long since out of business, and its buildings torn down. The location was in the outskirts of Meridian, in a field of approximately six acres. On a different part of this field, children were accustomed frequently to play baseball. Occasionally some diverted themselves around this vat, in which was impounded rain and surface water.
Certain concrete vats, including the one in this lawsuit, and concrete foundations for boilers and engines, relics of the old factory, were on the lot when appellants bought it a few years ago, and had been there for a long period of time prior thereto. They were retained by appellants as a possible incentive to potential purchasers of the premises for factory purposes. The vats were all visible from a highway skirting the property. They were *746 not hidden, or secret, and none could be classed as a concealed trap.
Billie Mitchell Barnhill was a small, intelligent boy of approximately seven years of age, when on the afternoon of March 27, 1947, he was discovered drowned in the vat here involved. How he came to be there, no one knew. He was alone, and had been repeatedly warned both by his mother and his older brother to stay away from the vats, including the one at issue here. In addition, he was known to be afraid of water, and would not wade beyond very shallow depths, even with others present. He had never been known to enter this pool. It does not appear that a path led by the place on his way home, and even if there had been, appellants had never consented to the entry of, or passage through, or playing in, these premises by him or other children. He was a trespasser there.
The vat in this case was about 35 feet long, 8 feet wide and 5 feet in depth. The concrete sides all around were only a few inches above the ground and that the vat contained water up to within a foot of the top of the sides could be seen for a distance of 50 feet away or more. As stated, there was nothing concealed about the vat, and it was utterly without any features of complication.
In many of these cases the Courts have noticed that some boys every year lose their lives by drowning in ponds and the like, but that the number so losing their lives is insignificant in comparison with the number of those who visit and play around or in such places. This is to say that while such drownings are a possibility they are not within the field of probability or likelihood, and our Court is committed to the rule that no man is to be convicted of negligence when or because he has failed to guard against that which is merely possible as distinguished from that which is likely to occur or is probable, as sometimes phrased. Here, this vat had existed for many years before appellants bought the land, and nothing in this record presents any evidence of prior trouble there, and this condition existed on the day of the tragedy *747
as it had, apparently without similar mishap, during all the long previous time of existence. This subject was fully discussed in Mauney v. Gulf Refining Co.,
At the common-law, there would be no liability under the circumstances of this case, and although the trespasser was a child, he was subject to the rule governing trespasses on land, the same as an adult. Liability, however, was sought to be fixed here by the application of the attractive nuisance doctrine, and by the so-called playground rule, both exceptions to the general rule. The latter rule is announced by the Pennsylvania Court in Kay v. Pennsylvania Railroad Company,
This attitude of our Court is in harmony with the following observation in 45 C.J., Sec. 188 (19), Negligence, *748
p. 784: "Even in jurisdictions where the attractive nuisance doctrine has been accepted, the tendency is to limit rather than to extend it, and the doctrine is said to be one which should be applied very cautiously and only when the facts come strictly and fully within the rule." Those states which have rejected it, or refused to apply it, have acted on the ground that "it has its foundation on the sympathy rather than on any sound principle of law, impairs property rights, imposes on every member of the community a higher duty for the protection of children than is imposed on their parents, and if carried to its logical conclusion would amount to practical insurance of children and make the ownership of property unduly unsafe, if not intolerable, or at least amount to a wide and dangerous extension of the liability attendant upon the ownership of property." Section 189 (20), 45 C.J., Negligence, p. 785. By this quotation, we are not to be understood as receding from our former decisions as to attractive nuisances, but in this connection, it is interesting to compare the foregoing language with the views of this Court in Bonhomie H.S. Ry. Co. v. Hinton et al.,
"While it is necessary to the applicability of the doctrine now under discussion that the instrumentality or condition involved in the particular case should be attractive to children as well as dangerous to them, a statement that any agency which is dangerous and attractive to children may constitute an attractive nuisance is entirely too broad, and leads to absurdities, for there is practically no limit to what may attract children. It is manifest that many things ordinarily in existence and use throughout the country are both attractive and dangerous to children, and to hold that such things amount to an implied invitation to enter would be contrary to reason, lead to vexatious and oppressive litigation, and imposes upon property owners such a burden of vigilance and care as would materially impair the value of property *749 and seriously cripple the business of the country. Accordingly, it is usually considered that in order that the doctrine may properly be applicable, the condition or appliance must be something unusual and which is of a nature rendering it peculiarly or unusually attractive or alluring to children."
Although we have elected to align ourselves with that group of states which has adopted the attractive nuisance doctrine, we have declared our tendency to limit rather than to expand its application. The doctrine, as stated, grew out of railroad turntable cases, while here, we have a pool or pond. Webster's New International Dictionary defines "pond" as "a body of water naturally or artificially confined, and smaller than a lake." The same authority defines "pool" as a "small body of standing or stagnant water." In the case of Thompson v. Illinois Cent. R. Company,
The Iowa Court in Blough v. Chicago Great Western R. Company,
We do not feel warranted under the evidence in this case to expand the doctrine of attractive nuisance to include the pond or pool here involved, or to impose liability upon appellants for the sad and pitiful death of this little boy; or to import into our jurisdiction any further exception to the general common law of negligence, such as the so-called playground rule. However, it is closely related to, if, indeed, it has any appreciable, substantial difference from, the turntable cases.
The jury awarded appellees a verdict of $12,500 in their suit for $25,000 damages, which the trial judge, by remittitur, cut down to $6,500, to which action of the court appellees did not except, but acquiesced therein. There was no conflict in the evidence, appellants, relying upon their contention that appellees had failed to make out a case, presented no witnesses, although the plaintiff introduced both appellants as adverse witnesses. Proper motion for a new trial was filed and overruled. The two assignments of error before us are that the court below erred in overruling this motion, and in refusing a peremptory instruction and a directed verdict in favor of appellants, defendants below.
We are of the opinion that the trial court did err in such rulings, and that appellants should have had a directed verdict. We therefore reverse the circuit court judgment, and enter judgment here for appellants.
Reversed and judgment here for appellants. *752