Atchison, T. & S. F. Ry. Co. v. Powers

• Decision Date: 23 April 1952
• Docket Number: No. 34567,34567
• Citation: 243 P.2d 688,206 Okla. 322
• Parties: ATCHISON, T. & S. F. RY. CO. v. POWERS.
• Court: Oklahoma Supreme Court

Page 688

243 P.2d 688

206 Okla. 322

ATCHISON, T. & S. F. RY. CO. v. POWERS.

No. 34567.

Supreme Court of Oklahoma.

April 23, 1952.

Syllabus by the Court.

1. Ordinarily, a landowner owes no duty of active care toward either an adult or infant on landowner's premises without an invitation, express or implied, and neither silent acquiescence, nor permission is, alone, sufficient to establish an invitation.

2. A pond of water, whether natural or artificial, is not an 'attractive nuisance' in absence of any hidden inherent dangers.

Rainey, Flynn, Green & Anderson, Oklahoma City, McMahan, Loofbourrow, & Loofbourrow, Boise City, for plaintiff in error.

Aaron Mesirow, Oklahoma City, C. R. Board, Boise City, for defendant in error.

ARNOLD, Chief Justice.

Plaintiff is the widowed mother of Roy Powers, a thirteen year old boy, who was drowned in an artificial body of water excavated and maintained by defendant on its railroad right-of-way near its yards at Boise City, Oklahoma.

Plaintiff alleged the artificial body of water was a small lake, generally six or seven feet deep, and constituted an attractive nuisance and was especially dangerous to small children by reason of the depth of the water and because there were holes of varying depths in the pond. Failure to have signs of warning as to the dangerous character of the premises and failure to have fences or other protection around the pond so that children of tender years could not obtain access to the place was alleged. It was further alleged the deceased and a younger companion were attracted by the pond and went there to play. That the deceased, after entering the water, stepped off into a hole excavated in the digging of the pond and, being unable to swim, was drowned. It was further alleged he was a stout, well-developed, healthy, obedient boy and was an able and skilled farm hand, capable of doing a man's work and earning a man's wages on the farm.

For answer, defendant alleged that the deceased went upon its property and into the pond without right or authority and without invitation either expressed or implied and that the drowning resulted from the deceased's own negligence or from some cause unknown to the defendant for which it was not responsible.

The pond involved was an excavation made near the place where a six inch drain tile intersected and emptied into an open drainage channel. It was used by defendant in the operation of its business to permit drainage of surface waters, together with discharge of water from locomotive engines. Sometimes the pond was full of water while other times it was dry. The pond or excavation was described as being rectangular and about sixty or seventy feet long and twenty to twenty-five feet wide and up to ten feet deep with banks almost straight up and down, or like a pit. The pond was not adjacent to any residences or roads or highways. As evidenced by the testimony and the photographs there were no amusement facilities about the pond.

Upon the day before the tragedy the deceased, a younger brother and a companion, Montie Sappenfield, went bird hunting with a B-B gun and the deceased wanted to go down to the pond of water. All three of the boys took off their clothes and went into the water, which was about waist deep, and waded around some thirty minutes to an hour.

That night there was a big rain. The next afternoon the deceased and Montie Sappenfield decided to go back to the pond. Apparently, because of the rain during the night, there was more water in the pond. It appeared to be up near the top of the hole or pond.

The witness, Montie Sappenfield, testified that on the second day he would not go into the pond because 'it looked deep and I could not swim', and he decided the water was too high to wade in. He testified that 'He (the deceased) went in. I told him it was too deep, and he better not.'

The plaintiff proved that the deceased was a boy of better than average intelligence and capable of doing everything except heavy lifting that was necessary to draw a man's wages as a farm hand. Farmers for whom he had worked testified deceased capably operated a farm tractor and was a good and dependable farm hand.

The Court submitted to the jury instructions on attractive nuisance.

(1) The defendant contends that a pond or lake, whether natural or artificial, is not an attractive nuisance and that the evidence was not sufficient to permit submission of the case to the jury and that the demurrer to plaintiff's evidence and the motion for directed verdict should have been sustained.

There is no contention that the deceased was an invitee upon defendant's premises. There is no evidence to sustain any such theory. Hence deceased's right to be in the pond or excavation depends upon the existence of an attractive nuisance.

This Court has previously considered similar cases involving liability for loss of life resulting from drowning. In City of Mangum v. Powell, 196 Okl. 306, 165 P.2d 136, it was held there was no liability for damages resulting from drowning of a ten year old boy in an artificial lake or pond which was essentially like a natural lake. The Court declined to apply the rule of the Turntable cases or attractive nuisance for the cogent reasons set forth by Justice Welch.

In Dennis v. Spillers, 199 Okl. 311, 185 P.2d 465, it was alleged a seven year old child was drowned in an ornamental pond built by defendants, partly on the premises occupied by them as a home and partly on an unused street. The pond...