Cuimmings v. Dunning, 600.

• Decision Date: 20 May 1936
• Docket Number: No. 600.,600.
• Citation: 210 N.C. 166,185 S.E. 653
• Parties: CUIMMINGS. v. DUNNING et al.
• Court: North Carolina Supreme Court

185 S.E. 653

210 N.C. 166

CUIMMINGS.

v.DUNNING et al.

No. 600.

Supreme Court of North Carolina.

May 20, 1936.

Appeal from Superior Court, New Hanover County; Cranmer, Judge.

Action by Charles Cummings, administrator of Gladys Lillian Jones, deceased, against A. W. Dunning and another. From a judgment dismissing the action, plaintiff appeals.

Reversed.

Action for damages for wrongful death of plaintiff's intestate alleged to have been caused by the negligence of defendants in failing to properly safeguard a deep water hole or pond near the limits of the city of Wilmington.

Plaintiff alleged, substantially, in his complaint and amendment to complaint, that de fendants owned a large water hole or artificial pond or lake, adjoining the corporate limits of the city of Wilmington, which was maintained and used by defendants as a fishpond; that it was 30 or 40 feet deep, and attractive to children; that there was no substantial fence about it nor warning against its use; that on the side near the road leading from Market to Princess Street there was no fence, and that plaintiff's intestate, a young girl, stated in the argument (without contradiction) to be eleven years of age, entered the premises and fell in or jumped in and was drowned. The following allegations appear in the amendment to the complaint:

"2. That these defendants had on various occasions prior to the death of plaintiff's intestate extended an invitation to numerous immature children, including members of the family of the deceased Gladys Lillian Jones, to come and bathe, swim and play, and make use of the said artificial pond or lake hereinbefore referred to in the second paragraph of the complaint.

"3. That these defendants on numerous occasions were present at said artificial lake or pond and saw numerous immature children wading, bathing and swimming and making use of said lake or pond as a playground and had personal knowledge that said children had habitually frequented said lake or pond and made no effort to prevent such use of said premises but to the contrary permitted, encouraged and invited the continuous use of said premises.

"4. That said artificial lake or pond was notoriously hazardous and dangerous and on several occasions had been the cause of death by drowning of small children, which said hazardous character was well known to these defendants, having existed for a long period of time, but said hazardous character was unknown to plaintiff's intestate.

"5. That said artificial lake or pond did allure, entice and attract numerous small children to use said pond or lake, including plaintiff's intestate.

"6. That these defendants having full knowledge of the use of said lake or pond by immature children for the purpose hereinbefore alleged, could and should have anticipated and foreseen the dangers that did accompany the use of said lake or pond by said immature children and these defendants utterly failed to properly guard or protect said children from the dangerous conditions and the maintenance of said pond orlake under these dangerous conditions, and the conduct of these defendants in allowing, permitting and inviting the use...