Cox v. Alabama Water Co.

• Citation: 112 So. 352,216 Ala. 35
• Decision Date: 07 April 1927
• Docket Number: 6 Div. 818
• Parties: COX v. ALABAMA WATER CO.
• Court: Alabama Supreme Court

112 So. 352

216 Ala. 35

COX v. ALABAMA WATER CO.

6 Div. 818

Supreme Court of Alabama

April 7, 1927

Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.

Action by J.R. Cox, as administrator of the estate of Willie Lee Cox, deceased, against the Alabama Water Company. Plaintiff takes a nonsuit and appeals from adverse rulings on pleading. Affirmed.

Landowner maintaining pool was not rendered liable for drowning of child by permitting accumulations of slime, increasing danger to child falling in.

The following are counts 1, 4, A, D, and F of the complaint:

"(1) The plaintiff claims of the defendant the sum of $30,000 as damages, for that heretofore on, to wit, May 3 1926, and for a long period of time prior thereto, the said defendant maintained upon its premises, or premises under its control, an artificial pool, cistern, or reservoir of water which said artificial pool, cistern, or reservoir was at a place on top of a hill overlooking the town of Dora, Ala., in Walker county, Ala., and overlooking the schoolhouse located in said town, and at a place where children of a tender age resorted to play, and where children attending school and going home from same would go over and along by said artificial pool, cistern, or reservoir, along a path made for the purpose of said travel; and said pool, cistern, or reservoir was constructed by digging or removing the dirt from a large space of ground, to wit, 130 feet long by, to wit, 40 feet wide, and, to wit, 25 feet deep, and the ends of the same were rounding and not square, so that said pit in said ground presented an egg-like appearance, and the plaintiff alleges that the bottoms, ends, and sides of said pit were concreted with smooth concrete to the level of the surface of the earth, and around the said pit the ground was level. The plaintiff alleges that the agents or servants of the defendant, acting within the line of their duty and scope of their authority, pumped or caused to be pumped in said concrete pit water each day and kept said water up to, to wit, 5 feet of the top thereof, and that by said pumping said water therein the said pool, cistern, or reservoir was kept up and filled up to said point. Plaintiff alleges that the sides and ends of said pit forming said pool, cistern, or reservoir were not perpendicular, but were constructed at an angle of, to wit, 45 degrees, so that the top and ends of same above said water was smooth cement, and made an inviting place for children of tender years to walk, run, and play. Plaintiff alleges that the said agents or servants of the said defendant, acting within the line of their duty and scope of their authority, so maintained said water in said pit forming said pool, cistern, or reservoir up to within, to wit, 5 feet of the top, and owing to some formation of the water, or owing to vegetable decay, or from some chemical reaction, or from staleness of the water, or some other natural chemical cause, the said pool has formed on the sides and ends of said pool a slime, moss, or silt all the way from just beneath the water's edge to the bottom of said pool cistern, or reservoir, a depth of, to wit, 20 feet, and that the said slime, moss, or silt was, to wit, 2 inches thick and was of such slick formation that the foot of man or child could not stand on the same in said slanting position, and so that if a child stepped into the edge of said water and on to said slime, moss, or silt, it was so slick that its feet would slip from under it and it would shoot down the incline to the bottom of said pool, cistern, or reservoir some 20 feet deep, and that said slime, moss, or silt was so slick that it could not get out, and that a man could not get out by reason of the fact that when he would get to the edge owing to the steepness of the sides and the formations of slime, moss, or silt on the sides, when his feet or knees were let against them and weight placed on them, his knees or feet would fly from under him and down to the bottom he would go again, so that within said pool, cistern, or reservoir, hidden below the surface thereof, was a concealed danger unknown to the children that resorted near there to play and that went by there to school, but which danger was known to the agents and servants of the defendant and had been known to them for a long period of time, to wit, one year, and was so well known to them that when one of them had occasion to go down therein or drain said pool, cistern, or reservoir, the said agents or servants of the defendant charged with the duty of maintaining said pool had prepared for themselves a long plank with cleats nailed across the same, so that he could lay said plank against the sides or ends of said pool, cistern, or reservoir, and on said slime, moss, or silt, and walk down said

cleats on said plank or walk up said plank.

"Plaintiff avers that said pool, cistern, or reservoir was artificially made, and was attractive to children by reason of the water, and by reason of the level dirt walkway around it and by reason of the cement runway some 5 feet wide left at the top of the water line; that said pool, cistern, or reservoir was dangerous to children, by reason of the walls being cemented slick, and by reason of letting the water stand so long that said slime, moss, or silt had settled upon the sides and ends in such quantities that when once a child got in he could not get out, by reason of said slickness being so that he could not stand or pull himself out of the water by reason of said slickness proximately caused by said slime, moss, or silt. Plaintiff avers that said pool, cistern, or reservoir had been maintained at said place in said condition by the defendant for a long period of time, to wit, several years; that it knew, or the agents and servants of the said defendant charged with the duty of maintaining said pool knew, that children were in the habit of resorting near this pool, cistern, or reservoir to play, and knew that children were in the habit of going the path to and from school that led by said pool, cistern, or reservoir. Plaintiff alleges that said defendant knew of the dangerous character of said pool, cistern, or reservoir; that it was maintained open and uncovered and unscreened. Plaintiff alleges that the defendant, knowing the dangerous character of said pool, cistern, or reservoir, and knowing that it was attractive to children, and knowing that said slime, moss, or silt on the sides and ends would prevent one from getting out once it got in, and knowing that it was uncovered, and knowing that children were in the habit of resorting near there to play and passed there going to and from school, yet, nevertheless, it left said pool, cistern, or reservoir without a guard, and without a fence that would turn back a child, and that it permitted the fence to fall down and become unloosened, and not in condition or position to turn back a child, which condition of said fence it permitted to remain down for a long period of time, to wit, one year.

"Plaintiff avers that on, to wit, May 3, 1926, his intestate, Willie Lee Cox, who was 8 years old, while on his way to school going along said path that passed along and by said artificial, attractive, and dangerous uncovered pool, cistern, or reservoir, and there being no fence, except a part of one that had fallen down, to turn him, wandered or was attracted to said pool, cistern, or reservoir, and to said cement run-a-round, and that he either fell in or stepped in, and that, owing to said hidden danger of said slime, moss, or silt, he could not get out, and he was drowned therein.

"Plaintiff avers that the defendant owed to his intestate a duty to keep said pool, cistern, or reservoir guarded or fenced so that children of the age of his intestate could not go within the danger zone therein, and he alleges that the death of his intestate was proximately caused by reason of, and as a proximate consequence of the agents or servants of the defendant, acting within the line of their duty and scope of their authority, negligently maintaining said pool, cistern, or reservoir in its said dangerous condition, without a guard or without a proper fence to turn away children attracted thereto."

(4) For count 4, the plaintiff adopts all the words and figures of count 1, down to and including the words "and he was drowned therein," where the same first occur together therein, and adds thereto the following:

"Plaintiff alleges that the agents or servants of the defendant, acting within the line of their duty and scope of their authority, knew that children resorted too near that pool; knew that they went along the path by the same; knew that it was uncovered; knew that the fence was down; knew that the pool and the cement run-a-round was attractive to children; knew that the slime, moss, or silt had collected on the sides and ends to such a thickness that if a child fell or stepped therein he would be shot to the bottom; that they knew he could not get out by reason of said slime, moss, or silt; that they knew that a child was liable to be attracted to said place; they knew the danger was hidden; they knew it was a death trap setting in an attractive place to children; and, knowing these facts, wantonly left said pool, cistern, or reservoir unguarded and without a fence that would turn children, that is, with the fence that was there torn down; and plaintiff alleges that the death of his intestate was proximately caused by reason and as a proximate consequence of said wanton negligence.

"A. The plaintiff claims of the defendant the sum of $30,000 as damages for that heretofore, to wit, on May 3, 1926, and for a long period of time prior thereto, the defendant maintained on its premises or premises under its control an artificial pool,

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