Best v. District of Columbia

• Decision Date: 30 June 1933
• Docket Number: No. 5768.,5768.
• Citation: 62 App. DC 271,66 F.2d 797
• Parties: BEST v. DISTRICT OF COLUMBIA.
• Court: U.S. Court of Appeals — District of Columbia Circuit

62 App. DC 271, 66 F.2d 797 (1933)

BEST v. DISTRICT OF COLUMBIA.

No. 5768.

Court of Appeals of the District of Columbia.

Argued May 3, 1933.

Decided June 30, 1933.

James A. O'Shea, John H. Burnett, and Alfred Goldstein, all of Washington, D. C., for appellant.

William W. Bride, Corp. Counsel, and Robert E. Lynch, Asst. Corp. Counsel, both of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and VAN ORSDEL, HITZ, and GRONER, Associate Justices.

MARTIN, Chief Justice.

An appeal from a directed verdict in an action for damages for negligence.

The plaintiff below, appellant here, is the administrator of Albert Edward Best, deceased, and as such administrator sued the District of Columbia for damages caused by the alleged neglect of the District in maintaining a certain wharf in a dangerous condition, thereby causing the death of plaintiff's decedent.

In the declaration the plaintiff alleged that the defendant maintained the wharf upon the river edge in the city of Washington, which was used by the District as a sand wharf; that the wharf was adjacent to a public street frequented by many people and children; that it was the duty of the defendant to properly guard the approaches to the wharf in order that it might not be peculiarly attractive to children of tender years; and to maintain and keep a proper lookout so that children of tender years would not be enticed to come on to the wharf and play on or about it; and maintain it in a reasonably safe condition with due regard to the safety of plaintiff's intestate, and not unnecessarily and unreasonably expose him to danger, and to maintain the wharf so that it would not be dangerous and unsafe. But plaintiff averred that the defendant, in violation of its duties, negligently failed to properly guard the approaches to the wharf, in that there was no proper gate or guard upon it, and negligently failed to maintain a safe lookout for children of tender years playing in, on, and about said wharf, so as not to unreasonably and unnecessarily expose such children to danger, and negligently suffered it to remain in a dangerous condition, leaving large holes in the floor unguarded and unprotected; that defendant had full knowledge that the wharf was dangerous, but notwithstanding for a long period of time negligently allowed it to remain in the condition aforesaid, and made no effort to protect or guard children of tender years from the dangerous condition thereof; that the plaintiff's intestate, a child 5 years old, lived with his parents in the vicinity of the wharf, and was incapable of exercising ordinary care and prudence in matters relating to a dangerous wharf, and on April 28, 1929, in company with other young children, was attracted to the wharf and, while playing upon it, without any negligence on the part of plaintiff's intestate, fell through one of the holes in the wharf into the water beneath and was drowned.

The defendant by plea denied all charges of negligence on its part.

The case came on to be tried, and counsel for plaintiff made an opening statement to the court and jury in which he repeated in substance the allegations of the declaration, stating also that some of the boards of the wharf extended over the water and that there were from ten to thirteen holes of varying sizes in the boards; that one of the holes was approximately three feet in diameter; that the wharf had some sort of barrier close to the street; that there was a fence between it and the sidewalk but the side portion was down, and children went in and out at their pleasure; that plaintiff's decedent went upon the wharf on the morning in question and fell through one of the holes in the floor and was drowned; that there was no one there at the time to keep the children away, and that the watchman who was stationed there arrived some time after the occurrence; that the wharf is not a part of the public highway, but is on private property of the District, and is not a place to which the public is admitted, but is a place where the boats dock and unload sand which is taken out and used by the District.

At the close of this statement counsel for the defendant moved the court to direct a verdict for the defendant on the ground that no cause of action had been stated by plaintiff's counsel, the court sustained this motion, and directed the jury to return a verdict for the defendant, which was done, and judgment entered accordingly. This appeal was then taken.

We cannot commend the procedure adopted by counsel for the defendant in filing the motion for a directed verdict at the close of plaintiff's statement to the jury. The motion raises issues which could properly have been submitted by a motion to dismiss the petition for want of substance. Had such a motion been submitted in ordinary course, the trial justice would have been given time in which to consider it, and, in case it was sustained, the plaintiff might have desired and been given an opportunity to amend. The course pursued in this case resulted in the dismissal of the cause before any testimony was taken, and under circumstances equivalent to a surprise, such as made it difficult for the plaintiff to amend his pleading if such course seemed proper and desirable.

It is apparent, of course, that the plaintiff's cause of action herein is founded upon the "attractive nuisance" doctrine which has been the subject of much litigation and many discordant decisions. In 20 Ruling Case Law, p. 79, it is said: "But inasmuch as children are less able to foresee and appreciate danger than are persons of mature years and intelligence, it is generally recognized that they are entitled to a greater degree of care than adults; and this has been particularly emphasized in the class of cases dealing with injuries from what have been termed `attractions to children' or `attractive nuisances.' These decisions establish that while a proprietor may owe no duty to adults with respect to instrumentalities maintained by him, he may be liable for injuries to a child of tender years for injuries sustained from the same instrumentalities. The doctrine has been well stated in the following terms: `One who maintains dangerous instrumentalities or appliances on his premises of a character likely to attract children in play, or permits dangerous conditions to remain thereon with the knowledge that children are in the habit of resorting thereto for amusement, is liable to a child non sui juris who is injured therefrom.'"

The decision of the Supreme Court of the United States in Sioux City & P. R. Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745, is the pioneer authority in the establishment of the doctrine in this country. In that case a railroad company was held liable in an action by a child about 6 years old, who had injured his foot while playing with a turntable belonging to the company, notwithstanding the contention that he was a trespasser and that the company owed him no duty. It appeared that the turntable was located in an open space on the private grounds of the company, about 80 rods from the...