Briscoe v. Henderson Lighting & Power Co.

Decision Date14 October 1908
Citation62 S.E. 600,148 N.C. 396
CourtNorth Carolina Supreme Court

Appeal from Superior Court, Vance County; Cooke, Judge.

Action by Walter H. Briscoe, by his next friend, against the Henderson Lighting & Power Company. From a judgment overruling a demurrer to the complaint, defendant appeals. Reversed.

The use of the term "alleyway," in a complaint for injuries, does not of itself imply that the strip has been dedicated to the public use; for one may use a part of his land as an alleyway for his business without subjecting it to a public use.

The plaintiff, suing by his next friend, alleges: That the defendant is a duly chartered corporation engaged in supplying light to the inhabitants of Henderson, N. C., and heat and power to some of them. That the defendant has and operates its light and power and heating plant on Spring street, very near the Main street, of the town of Henderson in a populous part of the said town, where there is much passing. That the defendant has and operates a large attractive brick building, very large dynamos, shaftings, and pulleys, engines and boilers, and by means of large doors and windows these machines may be seen from the street, the railway tracks, and the alley near by. That Spring street crosses Main street at a point 114 feet from defendant's said plant. That defendant's manager, Mr. Woodworth lives on the corner made by the intersection of said streets, his residence lot being 61 1/2 feet on Main street and 114 on Spring street. That next to his lot is the Grand Theater on a lot 54 feet on Main street and running back 110 feet. That the light and power plant extends from Spring street across or along the rear of these two lots, and the space between the power plant building and the rear of Mr. Woodworth's lot, which is inclosed by a high fence, and the rear wall of the Grand Theater, forms an alleyway about _____ feet wide, extending from Spring street, at a point near the Southern Depot, to an open lot which extends around the north side of the theater building to Main street. This open alleyway is the property of or in the possession and control of the defendant. The said theater building and the residence of the said manager are heated or warmed by hot air, or steam or hot water, supplied by pipes extending underground from engines in defendant's power plant across said alley into said buildings. That just on the edge of said alleyway and next to the manager's fence and the theater building are three small wells or receptacles several feet deep, into which the hot water from the heating pipes of said plant escapes. These wells are filled or nearly filled all of the time with very hot water. This condition existed at the time hereinafter referred to. The defendant in the month of October, 1907, unlawfully, negligently, carelessly, and wrongfully permitted said alleyway to remain open in immediate proximity to Spring street, and did unlawfully, wrongfully, and negligently fail to cover up securely or in any manner guard one of said hot water wells, but unlawfully covered or permitted to be covered the said well with a thin and weak covering, which the plaintiff believes was a banana case. That the plaintiff being only a small boy, with the intelligence usual in boys of his age, in passing through said alleyway at said time, did not and could not see the well or hole of hot water aforesaid, or know that it was under the thin, weak piece of wood, and, not having been guarded or cautioned against it, stepped upon the thin wood covering, which instantly gave way, and precipitated plaintiff into said hole or well of hot water, which instantly, before he could extricate himself, burned and scalded the plaintiff's right foot and leg so that the skin and parts of the flesh came off, and the remaining flesh was lacerated and wounded and made dangerously sore from the bottom of the foot to three inches above the knee, and the plaintiff suffered great pain and anguish of body for a long time, and was put to great cost and expense for nursing and for medicines, and for attendance and services of a physician, to the plaintiff's damage of $2,000. The entrances to the engine rooms and the power house and the theater were in said alley, and the machinery being constantly in motion is calculated to attract and allure boys and others to see the machinery and what may be seen in the theater, and the defendant was negligent and at fault in permitting said wells to remain in said alleyway uncovered or defectively covered, and such negligence was the direct and proximate cause of the plaintiff's great injury and suffering. Wherefore the plaintiff demands judgment.

The defendant demurred to the complaint for that it does not state facts sufficient to constitute a cause of action, in that it does not allege or appear: (1) That the defendant owed the plaintiff or the public the duty of keeping said alleyway (so-called) on or across its own premises open or free from obstruction so as to be used by the public, or that defendant owed the plaintiff any special duty whatsoever. (2) That the plaintiff or the public had any right to go upon the premises of the defendant or upon the alleyway, or to use the same for any purpose whatsoever. (3) That the alleyway was used by the plaintiff or the public, or that defendant knew that the plaintiff was in the habit of going on said premises, or had ever invited him there. (4) That the defendant knew that the alleged alleyway was a common resort of children of tender years in which to congregate and play, or that defendant was guilty of any act constituting negligence. For that it does not appear from the allegations of the complaint: (5) That the open alleyway where the plaintiff alleges he was injured was the private property of the defendant, and that defendant was in the possession and control thereof, and was using the same for the purposes permitted in its charter. (6) That the plaintiff was a trespasser upon the premises of the defendant, and was of such age as to be guilty of contributory negligence, and that the injury of which he complains was due to his own negligence, and not to the negligence of defendant.

His honor overruled the demurrer, and gave defendant time to file answer. Defendant excepted and appealed.

T. T. Hicks and J. C. Kittrell, for plaintiff.

A. C. Zollicoffer and J. H. Bridgers, for defendant.

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The diagram attached to the complaint shows that the defendant's power house and engine room is located on Spring street, which intersects with Main street. The manager's residence fronts on Main street. At its intersection with Spring street, adjacent to the dwelling fronting on Main street, is the theater, and adjacent thereto is an open or vacant lot. In the rear of the dwelling there is a high fence. Between this fence and the power and engine house is a vacant space, called, in the complaint, an "alleyway," opening on Spring street and extending the distance of the width of the power and engine house on one side and the dwelling and theater on the other, and finding an outlet into the vacant lot. The width of this "alleyway" is not given, but the depth of the lot upon which the dwelling is located is 114 feet from the corner of Main street. In the space, or alleyway, the defendant has dug three small wells or receptacles several feet deep, into which the hot water from the heating pipes escapes. "The dwelling and the theater are heated by hot air or steam, supplied by pipes extending underground from defendant's engines, across said alleyway into said buildings." The wells are usually full of hot water. The distance of the wells from Spring street is not given, but from the map it appears that the one into which plaintiff fell is about 62 feet from said street, and just back of the rear wall of the theater. For the purpose of operating its business of supplying light to the city of Henderson, the defendant has erected "a large, attractive, brick building, very large dynamos, shaftings, and pulleys, engines and boilers, and by means of large doors and windows these machines may be seen from the streets, the railway tracks, and the alley near by." It is further alleged that the entrance to the power and engine rooms are in the said "alleyway," and "the machine, being constantly in motion, is calculated to attract and allure boys and others to see the machinery and what may be seen in the theater." Plaintiff, a boy of 13, "with the intelligence usual in boys of said age," passing through said alleyway on October ___, 1907, not knowing or being warned of the existence of said wells, and the one in controversy not being securely covered, stepped into it and was injured. The negligence alleged is not covering up securely or in any guarding "one of said wells," but permitting it to be covered with a thin, weak covering, etc. The demurrer is based upon the failure of the plaintiff to allege any facts showing that it owed him any duty in respect to placing, using, or covering the wells upon its premises. The plaintiff does not allege that the space called an "alleyway" was ever used, or intended to be used, either as a public or private way for passing upon or over its premises, nor does he allege that he ever so used it. He does not allege the purpose for which he entered upon the premises, or that any relation existed between defendant and himself entitling him to enter upon the alleyway. For the purpose of bringing himself within a class of cases decided by the courts imposing a higher degree of care upon persons having upon their premises structures or other things which are calculated to attract children, he says that "the machinery, being constantly in motion,...

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