Renno v. Seaboard Air Line Railway , 120 S.C. 7 ( 1922 )

It is important that we keep before us the precise question we are called upon to determine. As I understand it, the question is: Did the Circuit Judge commit reversible error when he refused to direct a verdict in favor of the defendant, and when he permitted the jury to determine whether or not the defendant had maintained on its premises the pond in question; was it an artificial body of water, attractive and dangerous to children who might follow their childish instincts, and, if so, was it reasonably safeguarded against use by immature children?

The question is raised in various forms of expression, and is embraced in the following exceptions:

"(5) Because his Honor erred in not holding, on defendant's motion for a directed verdict in his favor, at the conclusion of the testimony, that the "wash hole" or pool of water in the branch in which plaintiff's intestate was drowned was not located on or near or in close proximity to a street, public highway, park, or other public place, and that it was not in an incorporated town or village, or in close proximity to or near by a thickly populated community, whereas he should have so held.

"(6) Because his Honor erred in refusing defendant's motion for a directed verdict in his favor at the conclusion of all the testimony on the ground that the wash hole or pool of water was located in the country in a sparsely settled community at a considerable distance from the corporate limits of the city of Clinton, and from the community of the Lydia Mill Village, and partly within the limits of a private pasture of an adjoining landowner, in a natural watercourse, at some considerable distance from any public highway, street, or public place, and not immediately adjacent to or near by any place where children of tender years resorted for the purpose of play or amusement; whereas he should have so held."

To have warranted such a directed verdict it should have appeared that there was no evidence from which a reasonable jury could have concluded that the pond in question was maintained by the defendant on its premises; that it was alluring to immature children; that in following their childish instincts they would frequent it as a wash hole; that it was dangerous; that the defendant knew or should have known these facts; that it did not take reasonable precautions against such use by immature children. If there was any competent evidence upon all of these subordinate questions, the presiding Judge should not have directed a verdict. For the theory of the complaint is that the defendant maintained upon its premises an instrumentality dangerous to children, attractive to their childish instincts, and which was not reasonably safeguarded, and which resulted in injury to the plaintiff.

It can scarcely be questioned at this time that in this State, at least, when one maintains upon his premises a dangerous instrumentality, which tends to attract the youthful instincts of children to use it for their amusement, a new duty is imposed upon the one maintaining such instrumentality, to wit, the duty of exercising ordinary care to prevent injury to them by coming in contract with it. In other words, he is required reasonably to anticipate the injuries that are likely to happen to them. Franks v. Cotton Oil Co.,78 S.C. 10, 58 S.E., 960, 12 L.R.A. (N.S.), 468. Hayesv. So. Power Co., 95 S.C. 230, 78 S.E., 956. Tucker v.Clinton Cotton Mills, 95 S.C. 302, 78 S.E., 890. Tucker v.Clinton Cotton Mills, 96 S.C. 466; 81 S.E., 182. McLendon v. Cotton Mills, 109 S.C. 238; 95 S.E., 181. Sextonv. Noll Co., 108 S.C. 516; 95 S.E., 129. This is the doctrine of the "turntable" and "attractive nuisance" cases, now too firmly established in the jurisprudence of our State to be questioned or lightly limited in its scope and operation.

It is true that in those cases in which the foregoing doctrine is announced, the Court was aided in determining whether or not the particular instrumentality in question was dangerous, and likely to be visited by the young and thoughtless by the fortuitous circumstances in each case that the particular instrumentality was near a street or park or in a populous vicinity. But this was only a circumstance for the consideration of the Court or jury, along with other circumstances not a sine qua non to the creation of an attractive nuisance and negligent dealing with it. As was well said by MR. JUSTICE HYDRICK in McLendon v.Cotton Mills, 109 S.C. 242; 95 S.E., 782, in speaking of whether an attractive nuisance might exist in a remote community:

"What is and what is not negligence depends so much upon circumstances that no inflexible rule can be laid down by which all cases may be determined."

The Court could not say as matter of law that an artificially created body of water, if maintained in a town or populous community, is an attractive nuisance, and that one more remotely located would not be such a nuisance. But the character of the instrumentality should be determined in the light of all the circumstances surrounding it, including the circumstance just referred to. So we repeat that, if there was any competent testimony along the lines mentioned, or testimony from which a reasonable jury might have concluded, that the defendant maintained on its premises an instrumentality that was dangerous and attractive to children, and had not taken reasonable precaution to safeguard it, the case should have gone to the jury.

I will not undertake to detail all the evidence bearing on the questions referred to, for the reason that its recital would prolong this opinion to an unreasonable length. Besides much of this evidence has been set out in another opinion. But I will call attention to the fact that the pond was, according to some of the witnesses, a quarter of a mile from Lydia Cotton Mill Village, and about one mile from Thornwell orphanage; that children from both these places frequented the pond, and used it as a wash hole. Some of the witnesses, after describing the pond, testified that it was dangerous. These facts were known to the railroad men, because the evidence shows that they sometimes ran the boys away from this wash hole. Besides the railroad must have known what is so forcefully expressed by MR. JUSTICE COTHRAN:

"That nothing in the range of youthful amusement possesses the allurements of the `wash hole' to the small boy, shedding his scant raiment as he runs to plunge into its cooling waters."

We may add that it is not essential that the wash hole, in order to exert its alluring influence, and do its damage when not reasonably safeguarded, must be in an incorporated town or near a park or street, or public place, and I may add further that, the greater the alluring force and the greater the danger, the greater should be the precaution to safeguard it against the unthinking. This rule emanates from an enlightened humanity that places human life above the dollar.

In my opinion the presiding Judge would have invaded the domain of the jury if he had directed a verdict as requested. I think the judgment of the Circuit Court should be affirmed.