Bicandi v. Boise Payette Lbr. Co. , 55 Idaho 543 ( 1935 )

Appellant owns and operates a sawmill adjacent to Emmett, in Gem County. The mill property is situated along the Payette River and, as a part of it, appellant has constructed an artificial pond which is filled with water by means of a canal from the river. The pond, canal and river surround a tract of land referred to in the case as the island. This pond is, and during the times herein mentioned was, used by appellant for the purpose of storing saw logs, brought on the premises by it to be manufactured into lumber at the mill. April 5, 1931, Lucio B. Bicandi, aged 11 years, son of respondents, with two other boys went to the pond and Bicandi and one of his companions went upon the logs floating therein, fell into the water and were drowned. This action was prosecuted by the parents of the Bicandi boy for damages, on the theory that appellant's negligence caused the death of their son. A general demurrer to the complaint was overruled, defendant answered, and trial to a jury resulted in a verdict for plaintiffs. A motion for judgment notwithstanding the verdict was overruled and judgment on the verdict was entered. This appeal is from the judgment, and one of the specifications of error brings here for review the order overruling the demurrer.

It is alleged in the complaint that respondents were and are husband and wife and the parents of Lucio B. Bicandi, and that his death was the result of the negligent acts of appellant as therein set forth. The corporate existence of appellant is alleged, as is its ownership and operation of the sawmill and premises above mentioned; also that on April 5, 1931, and for sometime prior thereto, one Steele had been employed by appellant as caretaker and watchman, agent and employee in charge of its mill premises and was, on the afternoon of that day, acting in the course and within the scope of his employment. Then follows a description of the mill property, and it is set out that it is bounded on the North side by the Payette River and fenced on the East, South and West sides by a high picket fence. The construction and maintenance of the mill pond is alleged, as is its use for the storage of logs by appellant, and it is pleaded that the pond and logs were visible to children traveling and playing thereabouts and constituted an alluring, enticing and attractive place for boys to play. It is also alleged that at a point on the East side of the mill property where the fence ends at the South bank of the river the lower portion of the pickets have been broken off, some distance above the ground, making a hole under the fence sufficiently large to admit boys to appellant's premises, and paths and trails leading to the hole in the fence are described. These conditions are alleged to have been well known to appellant, its agents, servants and employees and particularly to its watchman on and prior to April 5, 1931. It is further alleged that many small boys living in and about Emmett were enticed, attracted and allured by the mill pond and floating logs and by the trails and paths leading through the fence to go into and upon appellant's property and play on the island; that on April 5, 1931, the Bicandi boy and his two companions, one 7 and the other 8 years old, went through the hole in the fence and from thence in a westerly direction toward the island; that the watchman was standing about 150 feet from the point where the boys entered the premises and asked them where they were going, to which they answered they were going down to the island to play, and that he replied "All right"; that the boys went to the island and shortly thereafter Bicandi and one of his companions commenced to play and run upon the logs floating in the mill pond; that one or more of the logs rolled or twisted throwing the two boys into the water and the logs closed over them rendering it impossible for them to get out, and they were drowned; that the other boy ran for help and located the watchman a short distance away at a point where he could, and did, or in the exercise of reasonable care, should have seen that the boys were playing and running on and about the logs. It is further alleged in the complaint:

"That the said injuries to the said minor, Lucio B. Bicandi, were directly and proximately due to and caused by the negligence of the defendant, Boise Payette Lumber Company, in the following particulars, to-wit:

"(1) In maintaining an attractive place for children of tender years to play on and about which the defendant knew or in the exercise of reasonable care should have known was dangerous for children of tender years to play on or about without guarding the same or the said dangers in any manner whatsoever.

"(2) In failing to prevent children of tender years and particularly the said minor Lucio B. Bicandi from playing on and about said premises and particularly said logs and millpond which it knew or in the exercise of reasonable care should have known was dangerous for children of tender years to play on or about when it knew or in the exercise of reasonable care should have known that said children played therein and thereon.

"(3) In knowingly permitting said children of tender years and particularly said minor, Lucio Bicandi, to play upon the said premises and on said logs and millpond, which it knew, or in the exercise of reasonable care should have known, was dangerous for children of tender years to play in and upon.

"(4) In inviting said children of tender years and particularly the said minor, Lucio B. Bicandi, to play upon said premises and upon said logs and millpond which it knew or in the exercise of reasonable care should have known was dangerous for children of tender years to play in or upon.

"(5) In maintaining or permitting well-beaten footpaths upon its mill site leading to and from the hole in the picket fence which it knew or in the exercise of reasonable care should have known was enticing and alluring to children of tender years.

"(6) In permitting the pickets in the north end of the east fence to become broken, worn and decayed so as to permit a space of sufficient size to permit easy access to said mill site.

"(7) In failing to repair and maintain said east fence and particularly the north portion thereof so that the same would not constitute an enticing, alluring and attractive point for children of tender years to enter into and upon said mill site.

"(8) In permitting children of tender years to come upon said mill site and proceed to the island adjoining the millpond and logs floating thereon when it knew or in the exercise of reasonable care should have known it was dangerous for children of tender years to play thereon.

"(9) To permit children of tender years and particularly Lucio B. Bicandi to run and play on the logs floating on the millpond when it knew or should have known that he was running and playing thereon and knew or should have known that it was dangerous and unsafe for children of tender years to do the same.

"(10) In failing to warn said children and particularly the said minor, Lucio B. Bicandi, of the dangers of playing on said island, logs or millpond when it knew or in the exercise of reasonable care should have known of the dangers incident thereto and when it knew or should have known that children of tender years played on the said millpond constructed by defendant and upon the logs floated on and stored in said millpond and that such playing was dangerous to children of tender years.

"(11) In extending permission to Lucio B. Bicandi on the 5th day of April, 1931, to play on and about said island and the millpond and logs floating thereon and adjacent to and adjoining said island when it knew or in the exercise of reasonable care should have known that it was dangerous to children of tender years, and particularly Lucio B. Bicandi, to play thereon."

The demurrer to the complaint was urged, apparently, on the theory that the cause 'of action was based on the alleged negligence of appellant in maintaining its mill pond in such a way as to constitute what is commonly referred to, for want of a more accurately descriptive term, as an attractive nuisance, which lured respondents' son to his death.

A number of cases have come before the courts growing out of injuries to children sustained while playing on and about railroad turntables. One of these is York v. Pacific etc. Ry.Co., 8 Idaho 574, 69 P. 1042, wherein a judgment for damages for the death of a child caused by an accident while playing on a turntable was affirmed. This court has not extended the doctrine stated in the York case to accidents caused by instrumentalities other than turntables nor, so far as we know, has it heretofore been called upon to do so.

After all, attractive nuisance cases, like other actions for damages for accidental injuries, are based on negligence — on the failure of the owner of property which is dangerous to others to exercise such care for their protection as a reasonably prudent person would employ under like circumstances. One possessing property which is dangerous to children of tender years and immature judgment and which may, by reasonable care, be rendered less dangerous, or not dangerous at all, is bound to exercise that care. This doctrine cannot, in justice, be extended to require the owner of useful and necessary property, which is dangerous, to answer in damages to those who are injured by it if, by reasonable care, he could not have excluded them from contact with it, nor otherwise prevented their injury.

High explosives may be locked up beyond the reach of children, turntables and other dangerous machinery may be so secured that children cannot injure themselves thereby, but this is not true of ponds, lakes, streams, and many other properties which are the subjects of private ownership and which may cause the injury or death of children who play about them. The doctrine of attractive nuisance should not be extended so as to hold liable the owner of such property when he has used it only as a reasonably prudent person would do under like circumstances for, by so using it, he is not guilty of actionable negligence. (Barnhart v. Chicago, M. St.P. Ry. Co., 89 Wn. 304, 154 P. 441, L.R.A. 1916D, 443;Smith v. McGoldrick Lbr. Co., 124 Wn. 363, 214 P. 819;Peters v. Bowman, 115 Cal. 345, 47 P. 113, 598, 56 Am. St. 106.)

In the Barnhart case the Supreme Court of Washington quoted from Sullivan v. Huidekoper, 27 App. Cas. (D.C.) 154, 7 Ann. Cas. 196, 5 L.R.A., N.S., 263, as follows:

"Without citing other authorities, we are persuaded that the conclusions in the cases cited and the reasoning upon which they are based are correct, and that in a case such as the one at bar it would be unjust to hold the landowner liable for the death of, or injury to, a child 10 years of age. We do not consider that the appellee was negligent in not taking steps to prevent the trespassing upon her land by boys of such age as plaintiff's intestate. To hold landowners responsible under such circumstances would be to impose upon them an oppressive burden, and shift the care of children from their parents to strangers. Every man who has been brought up with the freedom allowed to American boys knows that you might as well try to dam the Nile with bulrushes as to keep boys away from ponds, pools, and other bodies of water."

Mill ponds are, and for many years have been, in common use in Idaho. Logs have been, and are, kept and floated therein, as is alleged to have been done by appellant, and it is not customary to enclose them. Appellant's failure to maintain a sufficient fence, or other barrier, to keep boys away from the pond does not render it liable. Furthermore, the attractive nuisance theory cannot be made to apply to the facts alleged in the complaint. It has application only to cases where children have been injured while on premises where they would be trespassers except for an implied invitation by something thereon which has attracted them.

Because the early cases grew out of accidents to children while playing on and about turntables, cases based on the attractive nuisance theory are frequently referred to as "turntable cases" In Fusselman v. Yellowstone Valley Land Irr. Co., 53 Mont. 254, 163 P. 473, 474, Ann. Cas. 1918B, 420, the Supreme Court of Montana said:

"The doctrine of the turntable cases proceeds upon the assumption that the injured party, if an adult, would have been a trespasser, but because of his tender years and indiscretion is not subject to the rule of liability applicable to trespassers. Any one who goes upon the private property of another without lawful authority or without permission or invitation, express or implied, is a trespasser to whom the landowner owes no legal duty until his presence is discovered. He is only required to refrain from wanton or wilful acts which occasion injury. . . . . A person upon the private property of another by invitation, express or implied, is there rightfully, and to him the landowner owes the positive duty to exercise reasonable care for his safety."

In 45 C. J. 771, sec. 172, it is said:

"Where no trespass is involved, the attractive nuisance doctrine is not applicable, but the right of recovery for injury is based upon different principles."

According to the allegations of the complaint the Bicandi boy and his companions were not trespassers. They were invited to remain on appellant's premises by its caretaker and watchman who acted, in so doing, within the scope of his authority. While they were there, with appellant's knowledge and consent and by its invitation, it owed them the positive duty to exercise reasonable care for their safety.

In 45 C. J. 823, sec. 235, it is said:

"While the owner, occupant, or person in charge of property is not an insurer of the safety of an invitee thereon, he owes to an invitee the duty of exercising reasonable or ordinary care for his safety, and is liable for injury resulting from breach of such duty, although no element of lawlessness or wantonness enters into the act or omission complained of. The duty in this respect is an active, affirmative, or positive one, and is not limited to merely refraining from injurious acts, although there is also a duty to refrain from any act which may make the invitee's use of the premises dangerous or result in injury to him."

Even had these children not been invitees, but mere licensees whose presence on the premises was known to the watchman, it was his duty, in view of the facts alleged, imputable to his employer, to protect them from the disaster which was imminent from playing about the pond and the logs floating thereon and to prevent them from doing so.

The Supreme Court of Tennessee, in Townsley v. Yellow CabCo., 145 Tenn. 91, 237 S.W. 58, said:

"A statement of an Ohio court in this connection is frequently quoted:

" 'Children, wherever they go, must be expected to act upon childish instincts and impulses; and others who are chargeable with a duty of care and caution towards them, must calculate upon this, and take precaution accordingly.' Ficker v.Cleveland etc. R. Co., 7 Ohio N.P. 600."

See, also, Angelier v. Red Star Yeast Products Co.,215 Wis. 47, 254 N.W. 351; Ramsay v. Tuthill Building Material Co.,295 Ill. 395, 129 N.E. 127, 26 A.L.R. 23; Fort Wayne Northern Indiana Traction Co. v. Stark, 74 Ind. App. 669,127 N.E. 460; Poteet v. Blossom Oil Cotton Co.,53 Tex. Civ. App. 187, 115 S.W. 289; Atlantic Ice Coal Co. v. Harris,45 Ga. App. 419, 165 S.E. 134.

An examination of the complaint shows a cause of action is stated by respondents against appellant based on the negligence of its watchman in permitting the Bicandi boy and his companions to go to the island, formed in part by the pond covered with saw logs, and in taking no action to protect them from danger while there.

A general demurrer to a complaint should be overruled if the facts therein alleged are sufficient to constitute a cause of action entitling plaintiff to any relief against defendant. (Carter v. Wann, 6 Idaho 556, 57 Pac. 314; Village of Sandpoint v. Doyle, 11 Idaho 642, 83 P. 598, 4 L.R.A., N.S., 810; Bonham Nat. Bank v. Grimes Pass P. M.Co., 18 Idaho 629, 111 P. 1078; Steinour v. Oakley State Bank,32 Idaho 91, 177 P. 843; Swinehart v. Turner, 38 Idaho 602,224 Pac. 74; Peterson v. Hailey Nat. Bank, 51 Idaho 427,6 P.2d 145.) The demurrer was properly overruled.

The answer admitted appellant's corporate existence and its ownership and operation of the sawmill plant. It denied the other allegations of the complaint and alleged contributory negligence of Lucio B. Bicandi and respondents.

The court instructed the jury on the theory that appellant's liability, if it was liable, was due to having so maintained its log pond that it was an attractive nuisance which lured and enticed respondents' son to his death. The submission of that theory to the jury was erroneous. The log pond was not an attractive nuisance and appellant is not liable for damages to respondents for maintaining it.

It cannot be truthfully said the case was tried solely on the theory of an attractive nuisance. As heretofore pointed out, the complaint states a cause of action based on the negligence of appellant's watchman in permitting the boys to go to a place of danger, on its premises, and in taking no precaution to prevent injury to them while there, which acts and negligence on its part resulted in the drowning of respondents' son. Respondents introduced evidence establishing the truth of these allegations and it was undisputed, and sustains the verdict and judgment.

No assignment of error has been made presenting for review the instructions given, and the court did not err in any particular specified by appellant. This court will not review acts of a district court which have not been assigned as error. (Citizens Right of Way Co., Ltd., v. Ayers, 32 Idaho 206,179 Pac. 954; Hurt v. Monumental Mercury Min. Co., 35 Idaho 295,206 Pac. 184; McDonald v. North River Ins. Co., 36 Idaho 638,213 Pac. 349; Morton R. Co. v. Big Bend I. M. Co., 37 Idaho 311,218 P. 433; Thomas v. Union Savings etc. Co., 38 Idaho 247,221 P. 132; Hill v. Porter, 38 Idaho 574, 223 P. 538; Bain v. Olsen, 39 Idaho 170,226 P. 668; Stedtfeld v. Eddy, 45 Idaho 584, 264 P. 381;Hammond v. McMurray Brothers, 49 Idaho 207, 286 P. 603; Zachv. Pond, 50 Idaho 685, 299 P. 666; First Security Bankv. Enking, 54 Idaho 735, 35 P.2d 266.)

The judgment appealed from is affirmed. Costs are awarded to respondents.

Givens, C.J., and Sutton, D. J., concur.

Petition for rehearing denied.