Anderson v. Reith-Riley Const. Co.

• Decision Date: 20 October 1942
• Docket Number: No. 16906.,16906.
• Citation: 112 Ind.App. 170,44 N.E.2d 184
• Parties: ANDERSON v. REITH-RILEY CONST. CO. Inc.
• Court: Indiana Appellate Court

112 Ind.App. 170

44 N.E.2d 184

ANDERSON

v.REITH-RILEY CONST. CO. Inc.

No. 16906.

Appellate Court of Indiana, in Banc.

October 20, 1942.

Appeal from Superior Court, St. Joseph County; J. Fred Bingham, Judge.

Action by Carl C. Anderson against the Reith-Riley Construction Company, Incorporated, to recover for the death of plaintiff's nine-year-old son in defendant's sandpit, on ground that the sandpit was an attractive nuisance. From a judgment sustaining a demurrer to plaintiff's complaint, the plaintiff appeals.

Judgment affirmed.

George Sands, of South Bend, for appellant.

Jones, Obenchain & Butler, of South Bend, for appellee.

FLANAGAN, Chief Justice.

The single question here presented is the correctness of the ruling of the trial court in sustaining a demurrer to appellant's complaint.

The complaint alleges that on August 26, 1939, appellee owned a lot in Homewood addition in Portage Township, St. Joseph county, which was located at one corner of the intersection of Mayflower Road and Ardmore Trail. That Mayflower Road is constructed over and across Ardmore Trail so as to form an overpass, and for a distance of several hundred feet in each direction from the point of the intersection is a viaduct; that the banks thereof were used by children for play, which fact was known to appellee or in the exercise of reasonable care, could have been known to it. That the lot owned by appellee was of fine sand and that within a few days prior to August 26, 1939, appellee had removed a large amount of sand for use in its road construction business leaving a hole 100 feet long, 50 feet wide and 10 feet deep with perpendicular walls. That the lot in question was in the midst of an unincorporated village of about 500 homes. That appellant lived a short distance away but did not know of the excavation. That his son, a bright intelligent boy of nine, while playing on the banks of the viaduct was attracted to the sand hole, went there to play, excavated below the surface and was killed in the cave-in which followed.

Under the facts alleged did the sand pit constitute an attractive nuisance?

[1][2] Indiana has recognized the general rule of “attractive nuisance” to the effect that an individual or a corporation is liable for injuries to a child non sui juris caused by leaving unguarded and exposed dangerous machinery or surroundings of such a nature and character as to naturally tempt and allure children to play with or otherwise use the same. Drew v. Lett, 1932, 95 Ind.App. 89, 182 N.E. 547;City of Indianapolis v. Emmelman, 1886, 108 Ind. 530, 9 N.E. 155, 58 Am.Rep. 65;City of Indianapolis v. Williams, 1915, 58 Ind.App. 447, 108 N.E. 387;Harris v. Indiana General Service Co., 1934, 206 Ind. 351, 189 N.E. 410. But the rule does not apply to those dangerous conditions which are obvious and common to nature, against which danger children are presumed to have received early instructions.

Nature has created streams, lakes and pools which attract children. Lurking in their waters is always the danger of drowning. Against this danger children are early instructed so that they are sufficiently presumed to know the danger that if the owner of private property creates an artificial pool on his own property, merely duplicating the work of nature without adding any new...