Brannon v. Sprinkle

• Decision Date: 21 November 1934
• Docket Number: No. 742.,742.
• Court: North Carolina Supreme Court
• Parties: BRANNON. v. SPRINKLE et al.

177 S.E. 114

207 N.C. 399

BRANNON.

v.SPRINKLE et al.

No. 742.

Supreme Court of North Carolina.

Nov. 21, 1934.

Appeal from Superior Court, Forsyth County; Hill, Special Judge.

Two actions by Hannah Brannon, administratrix of the estates of Edward and Tommy Brannon, deceased, against J. H. Sprinkle and others. From a judgment in favor of plaintiff, defendants appeal.

No error.

There were consolidated for the purpose of trial two cases; the plaintiff in each being the same person and the mother and the administratrix of her infant child, the intestate in the respective cases being Edward Brannon, aged four years, and Tommy Brannon, aged seven years, and the defendants in each case being the same.

Upon the plaintiff resting her case, the defendants moved the court to dismiss the action and for a judgment as of nonsuit, and upon denial thereof noted objection and reserved exception, and upon the close of all the evidence the defendants renewed their motion theretofore made, which was again denied, and objection and exception again noted and reserved.

It is admitted that the plaintiff is the duly qualified administratrix of her deceased children, Edward and Tommy Brannon, and that the defendants at the time alleged, as well as before and after, were the owners of the land described in the complaint, located on Northwest boulevard, in a populous section of the city of Winston-Salem. It is also not controverted that the intestates were drowned in a well or reservoir on said land on the 30th day of May, 1933.

These actions are instituted for the alleged wrongful death of said infant children, the intestates.

From judgment in favor of the plaintiff, the defendants appealed, assigning errors.

W. Reade Johnson, of Winston-Salem, for appellants.

J. O. Wagoner, R. M. Weaver, and Richmond Rucker, all of Winston-Salem, for appellee.

SOHENCK, Justice.

The determinative question in this case, which is raised by the exception, to the denial of the motion for a judgment as of nonsuit, is whether there was sufficient evidence of actionable negligence as alleged in the complaint to be submitted to the jury.

The plaintiff alleges, inter alia, "That upon the property described, * * * the defendants did on the 30th day of May, 1931, and for a great while previous thereto, maintain and allow to remain in an unprotected, exposed and unfenced condition, a brick well which was some fifty feet, more or less, deep; was of square dimensions, the opening of which was about twelve feet In diameter at the top; that stagnant water had been allowed to accumulate in said well to a depth of forty-seven or forty-eight feet, reaching to within approximately two feet of the top of said well, and vegetation had grown up from the walls and water, and trash and leaves had been allowed to accumulate on the surface of the said water in such a manner as to conceal and camouflage the true depth of said well. That for more than twenty years the public has used several foot paths which converged into one path at a point adjacent to and by the side of said well and the use of these foot paths was permitted and acquiesced in and allowed by the defendants and their predecessors in title to said property; and the defendants knew or should have known that the said well constituted a highly dangerous condition, not only to those who were using the said path, but to all who might come upon said property; that the defendants knew or should have known that children of immature years frequently used the said paths and had been allowed by these defendants * * * to frequent the vicinity and the property upon which the said well was situated; that children of tender years were permitted and have been accustomed to playing around said well, fishing for tadpoles and engaging in other childish sports. That on or about the 30th day of May, 1931, the plaintiff's intestate, an infant child four years of age, while using the said path or while present in the vicinity of said well, being attracted by the unusual and dangerous condition and in order to satisfy his childish curiosity, was tempted to the well, fell into the stagnant water which had accumulated and was drowned. That the negligence of the defendants in permitting the maintenance of the deep well or cistern in a densely populated section of the City without guard or barrier, in close proximity to a public thoroughfare and foot paths, when they knew, or by the exercise of ordinary care should have known, that small children in the vicinity including this intestate, would likely be attracted to the well or water pit which apparently afforded a place of recreation but in fact constituted a dangerous and hazardous condition, constituted a constituent element of the proximate cause of the injuries sustained by the plaintiffs intestate."

The foregoing excerpts are from the complaint wherein Edward Brannon is the intestate, and the complaint wherein Tommy Brannon is the intestate is identical, except it is alleged that he was seven years of age.

These allegations, with the admitted facts, clearly state a cause of action, and, if they are supported by any evidence, the court correctly submitted the case to the jury.

John Moore, a ten year old boy, told a tragic story, with childlike simplicity, in these words: "I was down there where they were the morning that they died. We were trying to catch tadpoles. There were no other children there with us that morning except my brother and he is dead now. I saw Tommie and Edward when they fell in the hole. The little one fell in first. He was fishing for tadpoles with a tin can. When the little one fell in the big one jumped and tried to catch him. I didn't do anything. Didn't any people come there. The fire people got them out of the hole. We could reach the water with the can. * * * There wasn't any top on the place where they fell in. * * * The brick wall was wide and had a flat top to it. It wasn't necessary to get up on the wall to fish for tadpoles but you could reach over it Tommie Brannon did not climb up on the wall but Edward, the four year old one, did climb up on the wall and was fishing with a can and fell in. Then Tommie jumped in. He didn't have a string on the can but had it in his hand."'

Hannah Brannon, the mother, testified that she ran to the scene and jumped in the hole in which she was told her children had fallen; that the water was deeper than she was, because she went under and could not find bottom, and that she was unable to get out until somebody pulled her out; that she could not do anything to help her children; that Edward was four years old and Tommy was seven.

J. L. Snyder testified, in effect, that he was a member of the fire department of Winston-Salem, and that his company reached the scene about thirty minutes after the children were drowned, and that the firemen devised means to get the children out by laying two ladders across the well; that the water in the hole was about two and a half feet from the top of the wall, and the wall was about two and a half feet high, so the water came up about to the top of the ground; that on the south side the wall was about even with the ground, and the slope of the ground tapered the wall up, the ground being a little sloping and the wall level; that the wall around the hole was about two and a half or three feet above the ground on the north side, eighteen feet square, and made of brick. It was ninety-four feet from the center of the sidewalk on Northwest boulevard, on the south side of the property, to the center of the hole.

Pefer Hogan testified substantially: That he had known this property thirty-five years or longer. That when he first became acquainted with it the city had it in charge and used it for a pumphouse, and later on the city sold it. That this well was used once as a help for the reservoir the city had on the far side of the creek, and that water was pumped from it through a pipe to the reservoir over there and then to the larger reservoir up town. That there was a path that came down the bank and went by on the west side of this brick structure, within some four or five feet of it. That the path led on out across the branch and on up across the hill, and that grown people and children all came across the property on this path; that there were two paths, one lead to "Pittsburg" and the other lead to the Old Town road and then into Cherry street. That he lived at the top of the hill on Cherry street and could see this property from his house. That there arc other houses there and a school a good piece up Cherry street That children going to school came through this lot where the hole is. There is a church on Cherry street, and people going to church came across that lot That he had seen children playing ball and one thing and another down in that bottom, seen them down there often. They had a little flat on yon side of the well, between there and the branch, had a nice little place there where they would play ball; and then they played some time down below there further in the meadow place.

Celia Harrington's testimony in chief, as set forth in the record, is as follows: "I lived down on Northwest Boulevard on May 30, 1931, just angling across the street from the hole; I could see it from my porch. I had lived there about six years and during that time have observed children playing around this place; that was their playground and they played there, catching tadpoles and having old tin cans, bending over the cricks, fishing along in the water and messing around in there. On the day of this accident you could see this place from the street along there, for they had ploughed up all around on this side and fixed to tend there. I remember when they had the auction sale out there. At that time this property was cleaned off; that spring they cleaned off all the bank clean on down and hauled all the brush and rubbish and stuff out on the creek and burned it up. Then they put up white posts with...