Ford v. Blythe Bros. Co.

• Decision Date: 30 June 1955
• Docket Number: No. 526,526
• Citation: 242 N.C. 347,87 S.E.2d 879
• Parties: Veda FORD, by her Next Friend, Harolee Ford, v. BLYTHE BROTHERS COMPANY, Inc.
• Court: North Carolina Supreme Court

Page 879

87 S.E.2d 879

242 N.C. 347

Veda FORD, by her Next Friend, Harolee Ford, v. BLYTHE BROTHERS COMPANY, Inc.

No. 526

Supreme Court of North Carolina.

June 30, 1955

Henry L. Strickland and Wm. H. Booe, Charlotte, for appellee.

Kennedy, Kennedy & Hickman, Charlotte, for appellant.

DENNY, Justice.

The appellant does not bring forward in its brief and discuss or cite any authority in support of these assignments of error: Nos. 1 through 10, 16, 25, 29 and 30. Therefore, each one of them will be deemed abandoned. Rule 28, Rules of Practice in the Supreme Court, 221 N.C. 544, 562.

Assignment of error No. 17, based on an exception to the refusal of the court below to sustain its motion for judgment as of nonsuit, interposed at the close of plaintiff's evidence and renewed at the close of all the evidence, presents the crucial question involved in this appeal.

The evidence clearly establishes the fact that the defendant knew that its clearing and excavating operation was attracting children in large numbers to the premises under its control; that its agents and servants knew of the frequent presence of children on the premises and on several occasions requested them to leave. The defendant's evidence also reveals that the children always left when requested to do so, but would return as soon as the person making the request left. The evidence likewise tends to show that the defendant's employees built fires and burned brush and other debris in the area where they knew the children were accustomed to play or cross in going to and from the apartment houses to a vantage point on the hillside, to watch defendant's trucks, bulldozers, scrapers, crane, and other equipment move to and fro on a level far below them. It would be difficult to conceive of anything short of a circus that would be more likely to attact children to premises than the conditions which existed on the premises controlled by the defendant for the period of six or seven weeks immediately prior to the time the plaintiff sustained her injuries. Even so, in the face of urgent pleas by mothers of children who lived in the nearby apartment houses, to build a fence between the P & N property and the apartment houses, or to otherwise guard against the children having access to the property while the clearing and grading operation was in progress, no action was taken in compliance with these requests until the morning of 25th July, 1952, when the defendant started to build a fence along the line of the P & N property. However, the fence had not been erected between the apartment house area and the P & N property when the plaintiff sustained her injuries.

In Briscoe v. Henderson Lighting & Power Co., 148 N.C. 396, 62 S.E. 600, 606, 19 L.R.A.,N.S., 1116, the plaintiff was not permitted to recover because the evidence failed to show that the premises of the defendant were especially attractive to children, or that children were accustomed to play there, but Connor, J., in speaking for the Court, said: 'We think that the law is sustained upon the theory that the infant who enters upon premises having no legal right to do so, either by permission, invitation, or license, or relation to the premises or its owner, is as essentially a trespasser as an adult; but if, to gratify a childish curiosity or in obedience to a childish propensity, excited by the character of the structure or other conditions, he goes thereon, and is injured by the failure of the owner to properly guard or cover the dangerous conditions which he has created, he is liable for such injuries, provided the facts are such as to impose the duty of anticipation or prevision; that is, whether, under all of the circumstances, he should have contemplated that children would be attracted or allured to go upon his premises, and sustain injury. The principle is well stated in 21 Am. & Eng., Enc. 473, and was cited with approval in McGhee's Case [McGhee v. Norfolk & S. R. Co., supra, 147 N.C. 142, 60 S.E. 912, 24 L.R.A.,N.S., 119]. ' A party's liability to trespassers depends upon the former's contemplation of the likelihood of their presence on the premises, and the probability of injuries from contact with conditions existing thereon.' Immediately following this language, the editor says: 'The doctrine that the owner of premises may be liable in negligence to trespassers whose presence on the premises was either known, or might reasonably have been anticipated, is well applied in the rule of numerous cases that one who maintains dangerous implements or appliances on uninclosed premises, of a nature likely to attract children in play, or permits dangerous conditions to exist thereon, is liable to a child who is so injured, though a trespasser at the time when the injuries are received; and, with stronger reason, when the presence of a child trespasser is actually known to a party, or when such presence would have been known, had reasonable care been exercised.' ' See also Ferrell v. Dixie Cotton Mills, 157 N.C. 528, 73 S.E. 142, 145, 37 L.R.A.,N.S., 64, in which this Court quoted with approval from 2 Shearman & Redfield on Negligence (4th Ed.), section 705, page 586, the following: "The owner of land where children are allowed or accustomed to play, particularly if it is unfenced, must use ordinary care to keep it in a safe condition; for they, being without judgment, and likely to be drawn by childish curiosity into places of danger, are not to be classed with trespassers, idlers, and mere licensees.''

The defendant contends the operation carried on by it did not constitute an attractive nuisance and that the law with respect thereto is not applicable, citing Briscoe v. Henderson Lighting & Power Co., supra; Boyd v. Atlanta & C. A. R. Co., 207 N.C. 390, 177 S.E. 1; Reid v. Sustar, 208 N.C. 203, 179 S.E. 659; Harris v. Winston-Salem Southbound R. Co., 220 N.C. 698, 18 S.E.2d 204; Hedgepath v. City of Durham, 223 N.C. 822, 28 S.E.2d 503; Boyette v. Atlantic Coast Line R. Co., 227 N.C. 406, 42 S.E.2d 462; Nichols v. Atlantic Coast Line R. Co., 228 N.C. 222, 44 S.E.2d 879, and similar cases. Certainly we are unwilling to hold that a clearing and grading operation such as that in which the defendant was engaged when the plaintiff was injured, constituted an attractive nuisance per se, but, on the other hand, it is not necessary that a thing or operation be an attractive nuisance in order for it to allure or attract children. For example, we have held in numerous cases that ponds, lakes, streams, reservoirs, and other bodies of water do not per se constitute attractive nuisances. Stribbling v. Lamm, 239 N.C. 529, 80 S.E.2d 270; Fitch v. Selwyn Village, 234 N.C. 632, 68 S.E.2d 255; Nichols v. Atlantic Coast Line R. Co., supra; Barlow v. Gurney, 224 N.C. 223, 29 S.E.2d 681; Hedgepath v. City of Durham, supra. But, Barnhill, J., now Chief Justice, in speaking for the Court in Barlow v. Gurney, supra [224 N.C. 223, 29 S.E.2d 682], in holding that it is not negligence for a person to maintain an unenclosed pond or pool on his premises, pointed out that 'When, however, he exercises this right and children of tender years are attracted thereto and it becomes a common resort of persons of tender years to which they go to play, and it appears that the owner knows or by the exercise of ordinary care should know that it is being so used, then it becomes his duty to exercise ordinary care...