Eades v. American Cast-Iron Pipe Co.

• Decision Date: 26 October 1922
• Docket Number: 6 Div. 672.
• Citation: 208 Ala. 556,94 So. 593
• Parties: EADES v. AMERICAN CAST-IRON PIPE CO.
• Court: Alabama Supreme Court

94 So. 593

208 Ala. 556

EADES v. AMERICAN CAST-IRON PIPE CO.

6 Div. 672.

Supreme Court of Alabama

October 26, 1922

Rehearing Denied Dec. 7, 1922.

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

Action by Joseph Eades against the American Cast-Iron Pipe Company. From a judgment on a voluntary nonsuit, plaintiff appeals. Affirmed.

Charles A. Calhoun and John T. Glover, both of Birmingham, for appellant.

Cabaniss Johnston, Cocke & Cabaniss, of Birmingham, for appellee.

MILLER J.

Joseph Eades sues the American Cast-Iron Pipe Company to recover damages for the death by drowning of his six year old son.

The complaint as amended contained six counts. There were 81 grounds of demurrer filed to each. The demurrers were sustained by the court to each count. The plaintiff declined to plead further, took a nonsuit, judgment was rendered thereon by the court, and from it this appeal is prosecuted.

Plaintiff's son, John Milton Eades, was drowned while playing in or near an artificial pool or pit of water on land of defendant formed by defendant mining or excavating chert, into which rain or surface water thereafter accumulated. The pool was near or adjacent to, about eight feet from, a public highway. This child and other children were in the habit of congregating in the neighborhood of the pool to play, and the defendant knew of this habit or custom. These averments appear in counts 1, 2, and 3. Some of these counts aver that at one time the water in the pool did not exceed two feet in depth, but afterwards the excavation continued, and there was a hole in it eight feet deep in water, unknown to plaintiff's son.

Counts 4, 5, and 6 also aver the water of the pool or pit extended from defendant's land partly into a public street or road in the city of Birmingham; and each avers plaintiff's son was drowned in the pit or pool while at or in it playing.

No count avers, nor is it contended, that the child got into the pool and was drowned while attempting to use the highway for lawful purposes. All of the counts aver the pool or pit was in an open place on land of defendant unprotected and unguarded by barriers or guards against the approach of children thereto, that it was attractive and alluring to children to play in it and was dangerous, and that defendant negligently and carelessly caused the pool or pit to remain on its land, easily accessible to children and unprotected and unguarded against the approach of children by inclosure guards, or otherwise, and as a proximate consequence, etc plaintiff's minor son was drowned. In each count the negligence relied on is the failure of the defendant to guard or otherwise inclose the pool or pit to prevent children from gaining access to it; and it is sought to show liability of the defendant in all of the counts on the theory it maintained, unguarded and unprotected against the approach of children by this pool, an attractive and dangerous nuisance upon its premises, or that said pool was in the nature of a trap or pitfall. The appellant in his brief states he "relied for a recovery upon the attractive nuisance and pitfall or concealed peril doctrine."

Athey v. Tenn. Coal, Iron & R. Co., 191 Ala. 646. 68 So. 154, is the case nearest in point with the facts alleged in this case to which we have been cited in this state. On the question involved in this case this court in that case wrote: "The remaining ground upon which plaintiff seeks to rest the liability of defendant municipality is that it has maintained or permitted a nuisance or pitfall at a place where its responsible officers knew, or in the exercise of common prudence and judgment ought to have known, that small children would be attracted and drawn into danger. The ditch and the water in it do no harm to neighboring property, except perhaps that in its present condition it destroys the use of the alley as a way, but that use is prospective, and the question of property right is not now at issue. The water is hot, dirty, and acid to a degree, but it is no more inherently dangerous to human life than the same volume of pure and pleasant water at the same place, nor does it offer to children a greater temptation to expose themselves to the danger of drowning. *** In the case before us, the municipal authorities having gone into the alley to dig the ditch and direct the flow of water, without in any wise intending to adopt or improve it as a way for travel, plaintiff's case will be considered without disfavor...