Alabama Great Southern R. Co. v. Green

Decision Date16 January 1964
Docket Number6 Div. 865
Citation159 So.2d 823,276 Ala. 120
PartiesALABAMA GREAT SOUTHERN RAILROAD COMPANY v. Ellis W. GREEN.
CourtAlabama Supreme Court

Cabaniss & Johnston, Birmingham, and Jones, McEachin & Ormond, Tuscaloosa, for appellant.

Olin W. Zeanah and Jere L. Beasley, Tuscaloosa, for appellee.

HARWOOD, Justice.

The plaintiff below was the mother of a child ten years of age who drowned in a pond or pool located on the right of way of the defendant company. The complaint alleged that the pit or reservoir contained a large amount of dirty, unclear water in sufficient depth to cover and conceal metal rods or spikes embedded in the ground or concrete on the bottom of said excavation or reservoir; that said metal rods stood upright and were sharp and dangerous; that the said pit or reservoir was attractive and alluring to children of tender years, and was exceedingly dangerous when left unguarded, and the reservoir gave every appearance of being a pool of water and the existence of the metal spikes was concealed; that the defendant knew or should have known the above facts and should further have known that the reservoir was located in a populous area; and that the said reservoir was nevertheless negligently maintained without guards or warning of any kind.

The complaint further avers that the plaintiff's minor son while playing at or near the reservoir was attracted by the same and climbed into or fell into said reservoir and as an approximate consequence thereof became entangled or hung on said metal rods or metal spikes which were concealed below the surface of the water, or fell against or on said spikes injuring himself, and as a direct or approximate consequence the plaintiff's son was caused to drown.

A demurrer to the complaint containing some 226 grounds was overruled by the court, and thereafter pleading was in short by consent.

The evidence shows that about 1,000 feet east of the defendant's railroad station in the city of Tuscaloosa, a ditch or creek flows, by means of a culvert, under an embanked section of the defendant's railroad tracks. About 50 years ago the defendant had constructed a rectangular wooden form and fitted it into an excavation in the bed of the branch at the lower side of the culvert. This was done for the purpose of making a water reservior from which its steam engines could be supplied with water. With the advent of diesel engines the reservoir was no longer used. Use of the reservoir was discontinued some 13 to 35 years ago. The wooden form apparently rotted and disappeared, and the metal rods which had been used to anchor the form remained in the pool in an upright position.

According to the witnesses, the pool was constantly filled with water variously described as real dirty, muddy, or unclean, and in its deepest part was about 8 feet deep. At the concrete apron on the lower side of the culvert were some metal rods fastened into the apron. These rods were exposed and varied in length. Other rods were in the pool, and depending upon the stage of the water and the length of the rod, might or might not be exposed. For instance, James Green, an uncle of the deceased boy, testified that on the Sunday morning following the drowning of Ronald Green the day before, 'There was a lot of them sticking up and about nine sticking out from the concrete, and then out in there was some sticking up, a lot of them.'

A photograph of the pool was received in evidence. It shows that the pool is oblong shaped and probably some 40 feet wide. Spikes protruding from the surface of the water can be observed and at least one of these spikes is toward the center of the pool. Even in the photographs the water appears turbid and scummy. On one side there are two old automobile tire casings partly submerged near the bank.

On Saturday, 15 April 1961, the deceased, Ronald Green, with his brothers Reginald, age 13, and George, age 10, and two friends, Jesse Smith, age 11, and Charlie Smith, age 10, were searching for tadpoles. They lived in a residential area not far from the pool, but the boys had apparently not visited the pool before. Ronald, the deceased, had a tin can. The boys separated around the pool, and their attention was attracted by Ronald helloing to them. Ronald, at the time, was in the pool and making swimming motions though he did not move forward. His brother, Reginald, took a belt and threw the end out to Ronald, Reginald holding the buckle end of the belt. He attempted to pull Ronald from the pool but Ronald wouldn't move. The belt slipped out of Reginald's hand and Ronald went back 'his body went back but he didn't. The bottom part of his body didn't move.' Reginald then ran for his mother who came to the pool. According to Jesse Smith, when the belt slipped out of Reginald's hand, Ronald went down, came up, and went down again and did not come back up.

All of the boys present with Ronald who were witnesses for the plaintiff, testified that Ronald was fully clothed at the time he fell into the pool.

One of the boys went to a nearby fire station and reported the accident. Immediately Harold Williams, a fireman for the city of Tuscaloosa, Henry Hannah, and Captain Watson of the fire department went to the scene. Williams waded into the pool from a sandbar until the water got up around his neck, and moved around trying to find Ronald. Not being able to locate him he obtained a pike pole from the truck in which he had ridden to the pool and eventually fished the boy out by this method. The body was located near the center of the pool.

Williams and Captain Watson testified that when they retrieved Ronald from the pool he was undressed except for a tight fitting pair of jockey shorts. These witnesses also testified that boys clothes were lying on the bank, as did Mr. Hocutt, another fireman who arrived at the pool during the time artificial respiration was being administered to Ronald.

Roy C. Jones, a police officer of the city of Tuscaloosa, arrived at the time artificial respiration was being administered. He saw some clothes on the bank of the pool and the clothing looked dry. At the time he observed Ronald he did not have any clothing on from his waist up, and he was covered with something from the waist down.

Rufus T. Strickland, coroner of Tuscaloosa County, also arrived during the time the firemen were attempting to revive Ronald by artificial respiration. At that time Ronald had nothing on but shorts, and noticing boys clothes on the bank, he rolled them up and put them near the body. He examined the body for any marks or bruises and found none. Mr. Williams and Captain Watson also testified that there were no marks, bruises or lacerations on Ronald's body.

The evidence shows that for a number of years children have played in a pasture adjoining the pool. Also there was a path leading from the top of the railroad embankment down to the pool. It was not unusual for children to play in the pasture and it was not unusual for people, mostly adults, to walk from the railroad tracks down to the pool, though children too were also freely around the pool. The plaintiff testified she had never permitted her children to play in the pasture, and she had no knowledge of their ever having gone to the pool. All witnesses agreed that they had never seen any people swimming in the pool, although occasionally adults were observed seining for minnows in the pool, and boys had been seen fishing in it.

Coroner Strickland testified that after investigation he executed a death certificate on Ronald Green. This certificate was introduced into evidence without objection. Thereon the cause of death was listed as 'Drowning,' and in the box calling for a description of how the injury occurred appears 'Waded into deep water.' Immediately under this entry appears 'Fell in ditch while playing.'

Coroner Strickland testified this latter entry ('Fell into ditch while playing') was not in his handwriting, was not authorized by him, and was not on the certificate when he turned it over to the Druid Funeral Service.

Dan Holly, Jr., a witness for the plaintiff, testified that he was an assistant at the Druid Funeral Service. When he embalmed Ronald's body he noticed a sort of bruise on his forehead. This bruise was not apparent until the embalming fluid started filling the capillaries, and then a spot about the size of a twenty-five cent piece turned brown 'like some of the skin does.' There was no abrasion at the spot.

On cross examination Holly testified that he made no record of this bruise, and told no one about it until a few days before the trial as he 'was not supposed to say anything.' Holly further testified that his partner is the uncle of Ronald Green.

Holly did not express any opinion as to the age of the bruise.

While the complaint alleges that the rods in the pool were sharp, none of the witnesses for the plaintiff testified as to the shape of the upper ends of the rods. On the other hand, two of the defendant's witnesses, long time employees of the defendant and familiar with the pool, testified that the rods were not sharp. We conclude that the rods were not pointed, but sharp only in the sense that any iron rod of a half inch or one inch in diameter is sharp to one falling against it.

Under ordinary conditions trespassing children, or children on the land of another as bare licensees, occupy the same position as trespassing adults. Highland Avenue & Belt R. Co. v. Robbins, 124 Ala. 113, 27 So. 422. A land owner is not required to anticipate that children will go where they have no right to be. Sheffield Co. v. Morton, 161 Ala. 153, 49 So. 772.

In 1873 the United States Supreme Court issued its opinion in Sioux City and P. R. Co. v. Stout, 17 Wall. 657, 21 L.Ed. 745. Leon Green in his article 'Landowners Responsibility to Children,' 10 Tex.L.Rev. 1, characterizes the opinion as a simple one, tried in a simple negligence theory and affirmed on the same basis. Stout, a...

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