Cooper v. Overton

Decision Date12 April 1899
PartiesCOOPER v. OVERTON et al.
CourtTennessee Supreme Court

Action by William H. Cooper, administrator of Oscar Cooper, deceased, against Jesse M. Overton and another. Judgment for defendants. Plaintiff brings error. Affirmed.

Gillham & Gillham, for plaintiff in error. Turley & Wright, for defendants in error.

WILKES, J.

This is an action for damages for the drowning of Oscar Cooper, the son of plaintiff, William H. Cooper; the father being the administrator of the son. It is conceded that there is no cause of action against John Overton, trustee, and as to him the action is dismissed. There was a verdict and judgment for defendant, and an appeal by plaintiff, as administrator, and he has assigned errors.

The facts, so far as necessary to be stated, are that Oscar Cooper, a boy about 10 years of age, was drowned by falling from a plank upon which he was attempting to float upon a pond of water upon a lot owned by defendant Jesse M. Overton, in Memphis, Tenn. Overton is a resident of Nashville, Tenn., and is the owner and in possession of lots Nos. 48 to 53 of block 24 in the Tenth ward of Memphis. These lots front about 148½ feet on the east line and about 400 feet on the north line of Clay street. They had descended to him from his grandfather. They were unimproved, unfenced, and uninclosed. The property had no other than natural drainage. The lot adjoining these lots is separated from them by a fence, and on it there is a house about 150 feet from the line of the lots. There are no other houses in the immediate vicinity of these lots, but they are located within a few blocks of a somewhat thickly populated part of the city. About 450 feet northwest of these lots is a public-school building, usually attended by about 370 pupils, and there is a Catholic parish school a few blocks south. This property was looked after by Overton & Overton, real-estate agents, for the owner, Jesse M., who rarely visited Memphis. Surface water from contiguous property flowed across these lots, and gradually cut a gully several feet deep, through which it found vent. The city, it appears, without the knowledge of the owner or his agent, filled up the lower end of this drain by dumping trash and dirt into it, so as to form a dam and cause a pond of water to form or accumulate on the lot. The edge of this pond was about 50 feet from a side-walk on Lea street, and 150 feet from a side-walk on Clay street. It appears from the statements in the record that Overton & Overton, agents, were in the habit of inspecting the premises about twice a month, and when last inspected there was no pond upon them; and it is further stated that they had no knowledge there was a pond upon the lot until after the drowning, which occurred February 10, 1898. It further appears that the pond would form after a heavy rain, and in a short time would dry up and disappear, and at this time there had been a heavy rain for two days. When notified of the accident, Mr. Overton went to the city authorities, and complained of their action in stopping the drain, and the city at once removed the dam and filled up the pond. On both sides of this property defendant Overton had caused sidewalks to be laid, and the pond was about 50 feet from the nearest point of the sidewalk. There appears, also, to have been a path or walkway across the lot, which was used by a few persons as a cut-off, instead of going around the sidewalks, but the public was not in the habit of using it. Its nearest point to the pond was about 25 feet. It does not appear that the owner or his agent had ever given any permission to the public to use a pathway across their lots, or that they knew of such use. The deceased was a pupil in the public school, and is shown to have been a boy of average intelligence. It appears that the school children had been playing in a bayou which crossed these lots. They had been forbidden (and the intestate with the others) from going on these lots by the principal, and as a rule these instructions had been obeyed. The deceased, however, with another boy, John Appling, aged about 11 years, and a younger brother of the latter, went over this lot from the sidewalk, about 50 feet, to the edge of the pond. A piece of the plank sidewalk had been torn up and thrown on the water of the pond, — by whom, does not appear, — and appears to have been the only one on the surface of the water. Oscar Cooper got upon this plank, and attempted to propel it around the pond, over the water, with a stick. He lost his balance and fell off the plank into deep water, and was drowned. It appears that the two Appling boys declined to get on the plank, deeming it dangerous, though invited to do so by young Cooper. It appears that other children had been playing at or in this pond, sometimes bathing and swimming, but whether school children or not does not appear. It is not shown that the pond had any special attraction for boys, but some testimony tending in that direction was excluded, and forms the basis of a part of the assignments. There was no danger to any one on or using the sidewalks. There is testimony tending to show that there was no pond there in the summer, and that it was only formed by heavy rainfalls, and would soon dry up. When the pond was full, it would extend up to and under the sidewalk of Clay street, but was shallow at that point, and generally around the margin of the pond. Various assignments of error are made, principally to the failure of the trial judge to give certain requests asked by plaintiff's counsel, and to the charge as given by him.

The first and second assignments will be treated together, and are refusals to charge as follows: "(1) The court instructs you that it is the duty of all owners of property situated in the city, or where many people live or travel, to take such reasonable care of the same as will render it reasonably safe to the public. (2) It is the duty of any such property owner to abate any dangerous nuisance which may arise on his premises, and it is his duty to look after his property; and, if a nuisance has existed for a considerable time, he is, in law, presumed to know it, and then it becomes his duty to abate it." Without stopping to comment on these requests, which we think are too general and meager in terms, we think the trial judge in his general charge more correctly stated the law applicable to the facts of this case, and in much better language, as follows: "An actionable nuisance is anything wrongfully done or permitted which injures or annoys another in the enjoyment of his legal right. This necessarily carries you to determining what Oscar Cooper's legal rights were. He had a legal right to pass over and along either Clay or Lea street in safety. These were the streets that bounded the lots upon which it is claimed the pond was. Defendant Overton had no right to construct, maintain, or permit a pond upon his lots so near to the streets which bounded the lots as to make it dangerous to persons who were using the streets. So, if you find from the evidence that the pond was so near to the streets which bounded the lots as to endanger any one who was using the streets, and as a consequence thereof Oscar Cooper was drowned, then the plaintiff can recover."

The third assignment is that the trial judge refused to charge a request as follows: "If a pond should form upon the vacant property of the owner, situated in the populous districts of a city, and near streets or public schools where many children attend, and which pond is deep enough to drown a child, it is the duty of the owner to abate the nuisance, — to drain or fill up the pond." This assignment will be considered with the fourth and fifth, which raise the question of the correctness of the trial judge's charge as a whole, — upon the duties of the landowner and the rights of the public. The judge charged as follows: "The pleading of defendant Overton puts upon plaintiff, Cooper, the burden of making out his case upon every material point by a preponderance of the evidence. The material points upon which the evidence must preponderate, before it authorizes the jury to give plaintiff a verdict, are the following: First, he must establish the fact that a pond was maintained or permitted to exist upon defendant's lots; second, that the manner or condition in which it was maintained or permitted to exist was negligence in itself; third, that it was because of its condition, or the negligent manner in which it was maintained or permitted, that Oscar Cooper was attracted to it and was drowned. Unless these three points are established by a preponderance of the evidence, there can be no recovery. An actionable nuisance is anything wrongfully done or permitted which injures or annoys another in the enjoyment of his legal rights. This necessarily carries you to determining what Oscar Cooper's legal rights were. He had a legal right to pass over and along either Lea or Clay street in safety. These were the streets that bounded the lots upon which it is claimed the pond was. Defendant Overton had no right to construct, maintain, or permit a pond upon his lots so near to the streets which bounded the lots as to make it dangerous to persons who were using the streets, so that, if you find from the evidence that the pond was so near to the street that it endangered any one who might be using the street, and as a consequence thereof Oscar Cooper was drowned, the plaintiff can recover. On the other hand, if you find from the evidence that Oscar Cooper had to leave the sidewalk, and go over on the private property of Overton, thirty feet or more, before he came to a place of danger in the pond, then there can be no recovery in this case from the bare fact of maintaining or permitting a pond to remain on the lot, for the reason that every owner of real estate has the right to use his property just...

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