Barlow v. Gurney

• Decision Date: 12 April 1944
• Docket Number: 377.
• Citation: 29 S.E.2d 681,224 N.C. 223
• Parties: BARLOW v. GURNEY.
• Court: North Carolina Supreme Court

29 S.E.2d 681

224 N.C. 223

BARLOW v. GURNEY.

No. 377.

Supreme Court of North Carolina

April 12, 1944

Civil action to recover damages for wrongful death.

Defendant owns and operates the Irene Cotton Mills and the surrounding mill village occupied by his employees. He maintains on the premises an unenclosed pond, which is within 40 feet of the village church [224 N.C. 224] and 20 feet of the road, and is in close proximity to the dwellings occupied by employees.

On May 10, 1942, about 4:30 P. M., plaintiff's intestate, a child less than four years of age, while playing around the pond attempting to catch a tadpole, fell in and was drowned.

At the close of the evidence for plaintiff defendant moved for judgment as of nonsuit. The motion was denied, and defendant excepted. There was verdict and judgment for plaintiff, and defendant excepted and appealed.

Jones & Smathers, of Charlotte, and Sam Poole, of Taylorsville for appellant.

Lewis & Lewis, of Statesville, and Burke & Burke, of Taylorsville, for appellee.

BARNHILL Justice.

Defendant brings up and discusses only his exception to the ruling of the court denying his motion to nonsuit. Hence, the sufficiency of the evidence is the one question debated.

It may be that some conditions, instrumentalities, and machines are so inherently dangerous and attractive to children that the owner is charged with notice by the very nature of the thing itself. If so, such is not the case here.

A person has the right to maintain an unenclosed pond or pool on his premises. It is not an act of negligence to do so. Hedgepath v. Durham, 223 N.C. 822, 28 S.E.2d 503.

When however, he exercises this right and children of tender years are attracted thereto and it becomes a common resort of persons of tender years to which they go to play, and it appears that the owner knows or by the exercise of ordinary care should know that it is being so used, then it becomes his duty to exercise ordinary care to provide reasonably adequate protection against injury. Failure so to do constitutes an act of negligence. Proximate cause is for the jury. Starling v. Selma Cotton Mills, 168 N.C. 229 84 S.E. 388, L.R.A.1915D, 850; Starling v. Selma Cotton Mills, 171 N.C. 222, 88 S.E. 242; Comer v Winston-Salem, 178 N.C. 383, 100 S.E. 619; Ferrell v. Dixie Cotton Mills, 157 N.C. 528, 73 S.E. 142, 37 L.R.A.,N.S., 64; Brannon v. Sprinkle, 207 N.C. 398, 177 S.E. 114; Cummings v. Dunning, 210 N.C. 156, 185 S.E....