Conway v. City Of Kinston

• Decision Date: 13 October 1915
• Docket Number: (No. 221.)
• Citation: 86 S.E. 524,169 N.C. 577
• Parties: CONWAY. v. CITY OF KINSTON et al.
• Court: North Carolina Supreme Court

86 S.E. 524

169 N.C. 577

CONWAY.

v.CITY OF KINSTON et al.

(No. 221.)

Supreme Court of North Carolina.

Oct. 13, 1915.

Appeal from Superior Court, Lenoir County; Peebles, Judge.

Action by Charles W. Conway against the City of Kinston and the Lenoir Oil & Ice Company. From a judgment overruling a demurrer by the Lenoir Oil & Ice Company, it appeals. Affirmed.

Rouse & Land, of Kinston, for appellant.

G. G. Moore, of Kinston, and C. L. Abernethy, of Newbern, for appellee.

CLARK, C. J. [1] The complaint alleged that the defendant Oil & Ice Company emptied from its plant through a 90-foot pipe into an open ditch on the edge of the sidewalk of a city street hot, scalding water, said ditch being uncovered, about 3 feet deep and about 2 feet wide, containing extremely hot water at a depth of from 12 to 24 inches, and that along the edge of the said ditch weeds, tall grass and vapor from said hot water and other obstructions obscured the sight of said ditch, whereby the plaintiff, a child of 9 years of age, who sues by its next friend, fell into said ditch which was left negligently uncovered without sign, signals, lights, or other warning, whereby the child was seriously injured, and that this was a nuisance which the defendant oil company had maintained for many years, and that the same was actionable negligence. The defendant Oil & Ice Company demurred upon the ground that the ditch was not on its premises, but on the edge of the street of the city, and that no cause of action is stated for that reason, and also on the further ground that it was not fixed with the duty of keeping down the grass and weeds along said ditch. The city did not join in the demurrer. The demurrer was properly overruled. If the defendant did turn loose a dangerous agency, such as hot, scalding water into an open ditch along the edge of the street, it was negligence not to safeguard it by a cover or using terra cotta or iron tubing. It was no protection to this defendant that the city did not take steps to abate the nuisance, or require that the hot water should be poured into a tube in said ditch, or otherwise covered, as a protection to the public.

In Palermo v. Mfg. Co., 130 La. 833, 58 South. 589, 40 L. R. A. (N. S.) 671, a child of 4 years of age fell into a street gutter containing hot water which had flowed from the defendant's plant and was painfully burned. It was held that the defendant was liable for damages, the court saying:

"On principle there is no difference between hot water and a dangerous machine left unguarded in a public place."

In Smith v. Electric Co., 198 Mass. 330, 84 N. E. 434, 15 L. R. A. (N. S.) 957, it was held that where the defendant turned steam into a sewer in such quantities that it enveloped a pedestrain on the sidewalk, whereby he became bewildered and was injured, the company was liable.

In Aurora v. Seldelman, 34 Ill. App. 285, a ditch had been dug in the street for the purpose of laying water pipes, and water had been run in to soften the dirt to make it settle more speedily, whereby the bank caved in, and, no guard being stationed, it was held that the defendant was liable for the death of a child who was watching a frog in the ditch when the ground beneath gave way, which threw him into the ditch and fatally injured him.

In Korpi v. Mining Co., 114 Minn. 525, 131 N, W. 372....