Banker v. McLaughlin

• Decision Date: 20 February 1947
• Docket Number: No. 4420.,4420.
• Citation: 200 S.W.2d 699
• Parties: BANKER v. McLAUGHLIN.
• Court: Texas Court of Appeals

200 S.W.2d 699

BANKER v. McLAUGHLIN.

No. 4420.

Court of Civil Appeals of Texas. Beaumont.

February 20, 1947.

Reformed and Affirmed March 6, 1947.

Rehearing Denied March 27, 1947.

Appeal from District Court, Orange County; F. Pat Adams, Judge.

Action by James McLaughlin against H. F. Banker for death of plaintiff's minor son by drowning in pit on defendant's land. Judgment for plaintiff, and defendant appeals.

Judgment affirmed on condition of remittitur, otherwise reversed and cause remanded for new trial.

Smith, Smith & Levy, of Beaumont, A. H. Boyd, of Alto, and Homer E. Stephenson, of Orange, for appellant.

Cecil & Keith, of Beaumont, for appellee.

MURRAY, Justice.

This is an appeal from a judgment of the district court of Orange county in favor of James McLaughlin, appellee, against H. F. Banker, appellant, for damages for the death of the minor son of the appellee, who was drowned in a large pit of water located in Forest Park Subdivision in Orange county, on land owned by the appellant.

The appellant owned a 60 acre tract of land in Orange county, several miles west of Orange, and subdivided into lots and blocks, which were sold as homesites. At the time the little boy was drowned in June, 1945, there were approximately 50 families living in the subdivision, of which number about 40 families had small children. Appellant caused a large hole to be dug on one of the lots in the subdivision and used the dirt therefrom to grade up the roads and streets in the subdivision. This hole remained full, or practically full, of muddy water. It was from five to six feet deep. Children were accustomed to playing about this hole and it was customarily referred to in the neighborhood as the swimming hole. The hole was not used for any purpose, it was not fenced and was accessible by road or path. James McLaughlin, Jr., the son of appellee, was five years and ten months old when his body was found on June 19, 1945, in the water on the bottom of the pit by searching parties. His clothes were found upon the ground near a bush or shrub a short distance away from the pool or pit.

The appellee brought his suit, alleging the ownership of the subdivision and the digging of the pit by appellant and that the pit made the premises especially attractive to children, and that it was dangerous and that it did attract the small son of the appellee. He alleged negligence on the part of the appellant in creating a hole deep and dangerous to children of tender years at a location which the appellant knew, or should have known, was used as a playground for children; negligence in failing to enclose the hole by a fence, or failing to use some sort of safeguard; and negligence in failing and refusing to fill up the pit within a reasonable time. The appellant answered the suit by general denial, and further by special answer that the appellee's son was neither a licensee nor an invitee but was a trespasser and that appellant would therefore be indebted to the appellee only for damages wilfully or intentionally caused by him; that the drowning was an accident occasioned by no fault of the appellant; that the pool of water was not different from any other pool of water, constructed in the usual manner and that the pool of water held no hidden danger; appellant further pleaded contributory negligence on the part of both the appellee and his son. The case was tried to a jury and at the conclusion of the testimony of the plaintiff below appellant filed his motion for an instructed verdict, which was by the court overruled, and at the close of all of the evidence he filed another motion for an instructed verdict which was also overruled.

The jury by its verdict found that the pit was especially and unusually attractive to children such as James McLaughlin, Jr.; that such pit was dangerous to children such as James McLaughlin, Jr., and that he was attracted by said pit; that the attraction by said pit was a proximate cause of the death of James McLaughlin, Jr.; that the appellant was negligent in permitting the pit to be on the premises in a condition especially and unusually attractive and dangerous to children such as James McLaughlin, Jr., and that such negligence was a proximate cause of his death; that prior to the date of the drowning children of tender years played about and swam in said pit and that the appellant knew, or should have known by the exercise of ordinary care, that they did so; that the appellant was negligent in failing to enclose said pit with a fence and that such negligence was a proximate cause of the boy's death; that the appellant was negligent in failing to fill up the pit within a reasonable time after its excavation and that such negligence was a proximate cause of the boy's death; that the appellant was negligent in failing to drain the pit and that such negligence was a proximate cause of the boy's death; that $15,000 would reasonably compensate the appellee for his actual pecuniary loss proximately caused by the death of his son; that the accident resulting in the death of the boy was not unavoidable; that the appellee was not negligent in not keeping his child away from the pool of water; that the appellee was not negligent in not keeping his child at home.

After the verdict of the jury was received, the appellant filed his motion for judgment non obstante veredicto, which was by the court overruled. The court entered judgment on the verdict of the jury for appellee in the sum of $15,000, and when appellant's motion for a new trial was overruled he perfected his appeal to this court.

By his first point the appellant complains of the action of the trial court in refusing to instruct a verdict in his favor at the close of all the evidence. The appellee urges that since the motions for instructed verdict filed by the appellant did not set forth any specific grounds, the first point of the appellant should not be considered. The appellant's argument in his brief, together with his argument under his second, third, fourth and fifth points are all based upon his contention that the evidence was insufficient to show any liability on his part. The same contention is brought forward under all these points, which complain of the court's action in refusing to instruct a verdict, in refusing to enter a judgment in his behalf non obstante veredicto and in refusing to set aside the verdict and grant a new trial. We will discuss and consider all of these points together as they are all concerned with the same question of law applicable to the facts of this case.

The appellant presents an able and extensive review and discussion of the authorities in Texas and other jurisdictions in regard to liability of property owners for death or injuries to small children occasioned by some dangerous instrumentalities upon their property. The case of Maruska et al. v. Missouri, K. & T. Ry. Co., Tex. Civ.App., 10 S.W.2d 211, in which is discussed the doctrine of attractive nuisances, beginning with what are commonly known as the "turn table cases," is quoted from at length and thoroughly discussed. Also cited and quoted from by the appellant are the cases of Davis v. Joslin Mfg. Co., 29 R.I. 101, 69 A. 65; Blough v. Chicago G. W. R. Co., 189 Iowa 1256, 179 N.W. 840; Sullivan v. Huidekoper, 27 App.D.C. 154, 5 L.R.A., N.S., 63, 7 Ann.Cas. 196; Thompson v. Illinois Central R. Co., 105 Miss. 636, 63 So. 185, 47 L.R.A.,N.S., 1101; Emond v. Kimberly-Clark Co., 159 Wis. 83, 149 N.W. 760; Stendal v. Boyd, 67 Minn. 279, 69 N. W. 899; Overholt v. Vieths, 93 Mo. 422, 6 S.W. 74, 3 Am.St.Rep. 557. The contentions of the appellant that the facts of this case do not warrant the finding of negligence on his part are overruled....