Blough v. Chicago Great Western R. Co.

• Decision Date: 16 November 1920
• Docket Number: 33648
• Citation: 179 N.W. 840,189 Iowa 1256
• Parties: IRA W. BLOUGH, Administrator, Appellant, v. CHICAGO GREAT WESTERN RAILROAD COMPANY et al., Appellees
• Court: Iowa Supreme Court

179 N.W. 840

189 Iowa 1256

IRA W. BLOUGH, Administrator, Appellant, v. CHICAGO GREAT WESTERN RAILROAD COMPANY et al., Appellees

No. 33648

Supreme Court of Iowa, Des Moines

November 16, 1920

Appeal from Black Hawk District Court.--GEORGE W. DUNHAM, Judge.

ACTION for damages consequent upon the drowning of Velma Leona Gregson, resulted in a directed verdict for defendant and judgment thereon. Plaintiff appeals.

Affirmed.

J. C Beem, and H. E. Tullar, for appellant.

Carr Carr & Cox, and James G. Clark, for appellees.

LADD J. WEAVER, C. J., STEVENS and ARTHUR, JJ., concur.

OPINION

LADD, J.

Shortly after 2 o'clock in the afternoon of March 29, 1919, Velma Leona Gregson, aged 5 years, wandered from home, and was drowned in a pond or barrow pit situated entirely in the right of way of the Chicago Great Western Railroad Company, and within the corporate limits of the city of Waterloo. This pond is said by witnesses called by plaintiff to have been from 200 to 300 feet long, 3 to 4 feet deep, and 9 to 12 feet wide, with steep banks on the side opposite the railroad. A ten-inch tile drains about 40 or 50 acres of land, including a cemetery, down the hillside into the west end of this pond. A considerably traveled pathway extends from this drain around the end onto the railroad. The surrounding land is low. There is a natural drainage from the pond under the railroad bridge close to it, and on to Black Hawk Creek, about 75 yards distant, through a ditch about a foot wide and a few inches deep. Another company had built a dam in this creek. The surface water of the pond is about 8 inches higher than that of the creek, and, but for the tile drain, the water might be carried from the pond within a few inches of the bottom. According to an engineer, the bottom of the pond was but 5 or 6 inches below the outlet, and the fall from the bottom of the barrow pit to the bridge, 6 inches, and a foot from there to the bottom of the creek. The nearest city street is about 65 feet from the mouth of the drain, and it is three blocks distant from the paving. There was no fence or other guard about the pond. Children habitually played about the pond. At the time in question, the water overran the path.

Such were the facts on which the trial court based its denial of recovery. The doctrine of the so-called turnable cases is relied on to reverse this ruling. See Edgington v. Burlington, C. R. & N. R. Co., 116 Iowa 410, 90 N.W. 95. We do not regard it as applicable. It may be conceded that the pond was attractive to children. So are all bodies of water. The trouble with the case is that there was nothing about this pond to render it more attractive or to enhance the danger over the attractions or dangers of natural bodies or streams of water, such lakes, ponds, and streams being scattered over the country nearly everywhere. Counsel have not cited, nor have we been able to find, any authority for adjudging a landowner responsible for loss of the life of a child from drowning in a natural pond, lake, or stream situated on his lot or tract of land, or in an artificial pond or stream therein existing, like those created in the course of nature. In Price v. Atchison Water Co., 58 Kan. 551 (62 Am. St. 625, 50 P. 450), the defendant company maintained two water reservoirs on its premises in the immediate proximity of the residence part of the city of Atchison, one having a capacity of 1,100,000 gallons, and the other about 3,000,000 gallons. The smaller one was used as a settling basin into which the water was pumped, and from which it was discharged into the larger reservoir through a pipe. The opening of this pipe into the larger basin was covered with an apron made of lumber, and designed to protect the walls of the reservoir. It was partially buoyed by the water, and rose and fell as the water supply increased or diminished. For 4 feet from the top, the walls of the smaller reservoir were perpendicular, and thence slanted to the bottom, its basin being about 10 feet in depth at the deepest part. The walls of the larger reservoir slanted at an angle of about 45 degrees, and its basin had a depth, at its lowest part, of about 15 feet. It would have been difficult, if not impossible, for a person falling into the larger basin to get out unaided, on account of the steepness of the walls. These reservoirs were shown to have been attractive to children, for the purpose of fishing and other sports. Though the ground was fenced, the children gained ready access over the stiles, as they were permitted to do. One of the sons of plaintiff, 11 years of age, ventured upon the apron above described, for the purpose of crossing from one part of the reservoir wall to another. The end which projected out upon the water sank, precipitating him into the basin, and he was drowned. Plaintiffs were adjudged entitled to recover, and rightly so, because of the entirely artificial character of the receptacle, with the apron and its motion rendering the place peculiarly attractive. In City of Kansas City v. Siese, 71 Kan. 283 (80 P. 626), a pond had been formed by placing a fill in the street across a deep ravine. An alley of the city crossed this pond. A sewer was placed in the alley by the city, and a sewer was built over and across the pond, resting in a trough, supported by piling. This sort of viaduct was attractive and alluring to boys, who for a long time had resorted to the place, and climbing along this pipe and trough, jumped into the water below. The artificial structure built over the pond was the most attractive feature of the place, and recovery was approved; though one of the judges dissented. These cases, as explained by Johnson, C. J., in Tavis v. City of Kansas City, 89 Kan. 547, 132 P. 185, are not out of harmony with the rule as applied to natural bodies of water. In City of Pekin v. McMahon, 154 Ill. 141 (45 Am. St. 114, 39 N.E. 484), it appears that the city owned 4 lots in a certain block, bounded on the west and south by public streets, and on the north by an alley. These lots were in a thickly settled part of the city. Gravel had been excavated therefrom, about 200 feet long and 100 feet wide, leaving the banks steep; and there was a triangular tract to the north. Water had accumulated to the depth of 14 feet. The fence around the property was out of repair, and was open for 30 feet at one place and 40 feet at another, through which teams were driven. Numerous logs and planks were floating on the water, on which the boys had been in the habit of playing, as the defendant well knew. The decedent, a boy of 8 years, so playing, stepped upon a log in the water, and it rolled over, and threw him into the pond, in consequence of which he lost his life. The court, in upholding recovery, observed that:

"The place where he was seen playing in the water was only a few feet from this opening on the public alley. The love of motion, which attracts a child to play upon a revolving turntable, will also attract him to experiment with a floating plank or log which he finds in a pond within his easy reach."

In Brinkley Car Co. v. Cooper, 60 Ark. 545 (46 Am. St 216, 31 S.W. 154), boiling water was let from a boiler into a pit, forming a pool on its premises about 60 feet distant from its mill, and 300 feet from the nearest street, and in it defendant deposited pieces of bark from logs or timber brought to its yards, and these congregated and floated on the water so thickly that persons approaching or passing could not see the top of the boiling water; and, of course, defendant was held responsible for the dangerous trap set...