Fitch v. Selwyn Village

68 S.E.2d 255 (1951)

234 N.C. 632

FITCH v. SELWYN VILLAGE, Inc.

No. 530.

Supreme Court of North Carolina.

December 12, 1951.

*257 Shannonhouse, Bell & Horn, Charlotte, for plaintiff, appellant.

Francis H. Fairley, Charlotte, for defendant, appellee.

DENNY, Justice.

The overwhelming weight of authority in this country is to the effect that ponds, pools, lakes, streams, reservoirs, and other bodies of water, do not per se constitute attractive nuisances. 56 Am.Jur., Waters, section 436, page 850. "The attractive nuisance doctrine generally is not applicable to bodies of water, artificial as well as natural, in the absence of some unusual condition or artificial feature other than the mere water and its location." 65 C.J.S., Negligence, § 29(12) j, p. 475.

It is, therefore, not negligence per se to maintain an unenclosed pond, pool, lake, or reservoir on one's premises. Barlow v. Gurney, 224 N.C. 223, 29 S.E.2d 681; Hedgepath v. Durham, 223 N.C. 822, 28 S.E.2d 503.

It is generally held, however, in this jurisdiction that where one maintains an artificial lake, pond, or reservoir, and children of tender years are attracted thereto and it becomes a common resort for such children to gather and play, "and it appears that the owner knows or by the exercise of ordinary care should know that it is being so used, then it becomes his duty to exercise ordinary care to provide reasonably adequate protection against injury. Failure so to do constitutes an act of negligence." Barlow v. Gurney, supra [224 N.C. 223, 29 S.E.2d 682]; Hedgepath v. Durham, supra; Cummings v. Dunning, 210 N.C. 156, 185 S.E. 653; Brannon v. Sprinkle, 207 N.C. 398, 177 S.E. 114; Gurley v. Southern Power Co., 172 N.C. 690, 90 S.E. 943; Starling v. Selma Cotton Mills, 171 N.C. 222, 88 S.E. 242; Starling v. Selma Cotton Mills, 168 N.C. 229, 84 S.E. 388, L.R.A. 1915D, 850. But, we know of no decision in this or any other jurisdiction, where the owner of land has been held liable for failure to erect a fence or other obstruction to protect small children from obtaining access to a branch or creek upon his premises which flows in its natural state.

It is a matter of common knowledge that streams of water are attractive to children, and that thousands of them flock to them during each year for the purpose of wading or swimming in their cool and refreshing waters, or to fish therein, notwithstanding the common dangers that may exist in such use of our natural streams.

The rule with respect to liability for these dangers which exist in nature, is well stated in the case of Peters v. Bowman, 115 Cal. 345, 47 P. 598, 599, where the court said: "The owner of a thing dangerous and attractive to children is not always and universally liable for an injury to a child tempted by the attraction. His liability bears a relation to the character of the thing whether natural and common, or artificial and uncommon; to the comparative ease or difficulty of preventing the danger without destroying or impairing the usefulness of the thing; and, in short, to the reasonableness and propriety of his own conduct, in view of all surrounding circumstances and conditions. As to common dangers, existing in the order of nature, it is the duty of parents to guard and warn their children, and, failing to do so, they should not expect to hold others responsible for their own want of care. But, with respect to dangers specially created by the act of the owner, novel in character, attractive and dangerous to children, easily guarded and rendered safe, the rule is, as it ought to be, different; and such is the rule of the turntable cases, of the lumber-pile cases, and others of a similar character."

If it should be conceded that a branch or creek is inherently dangerous to children of tender years, it must also be conceded that such streams cannot be easily guarded and rendered safe. A street is ordinarily an unsafe place for a child of tender years to play, but the location of a house near a street, does not impose upon the landlord any obligation to protect the children of *258 his tenant from injury caused by playing in such street. Streets, like streams, cannot be easily guarded and rendered inaccessible to children.

The plaintiff is relying upon the decisions of this court heretofore cited and the case of Comer v. Winston-Salem, 178 N.C. 383, 100 S.E. 619. All of these cases involved artificial ponds or reservoirs except Comer v. Winston-Salem, which case is also distinguishable from the facts disclosed on the present record. In this latter case, an artificial condition had been created by the construction of a culvert through which the natural stream flowed. The water, as it flowed out of the culvert, made considerable noise, and people passing over a bridge, which the city had constructed 20 feet above the culvert, could hear the rushing water. At times, certain dyes were discharged in the stream by mills above the bridge, and the water presented a beautiful spectacle as it came gurgling through the culvert with its many-hued colors. For twenty years the locality adjacent thereto had been used as a playground for children, and the water of many colors, as it came out of the culvert, could be heard by children crossing the bridge but could only be seen by them by leaning over the bannister or railing, or getting through it. The plaintiff's intestate, a child 28 months of age, got through the bannister or railing which consisted of two parallel pipes one and one-half inches in diameter, one was placed about eleven inches above the bridge and the other eighteen inches above the lower one. The child fell to the culvert and was fatally injured by the fall. Recovery was allowed on the ground that the defendant knew of these conditions and failed to construct adequate bannisters or guards for the protection of children under the existing circumstances.

In the instant case, however, as regrettable as the unfortunate death of plaintiff's intestate was, in our opinion the allegations of the plaintiff's complaint do not make out a cause of action for actionable negligence against the defendant, and this view is supported by numerous decisions from other jurisdictions. Peters v. Bowman, supra; Williams v. Kansas City, Clay County & St. Joseph Ry. Co., 222 Mo.App. 865, 6 S.W.2d 48; Beeson v. City of Los Angeles, 115 Cal. App. 122, 300 P. 993; McCall v. McCallie, 48 Ga.App. 99, 171 S.E. 843; Simon v. Hudson Coal Co., 350 Pa. 82, 38 A.2d 259; Denver Tramway Corp. v. Callahan, 112 Colo. 460, 150 P.2d 798; McGuire v. Carey, 366 Pa. 627, 79 A.2d 236; 38 Am.Jur., Negligence, section 149, page 815. Cf. Salt River Valley Water Users' Ass'n c. Compton, 39 Ariz. 491, 8 P.2d 249, 11 P.2d 839, and Hunsche v. Southern Pacific Co., D.C.Cal., 62 F. Supp. 634.

The judgment of the court below is affirmed.