Gandy v. Copeland

• Citation: 86 So. 3,204 Ala. 366
• Decision Date: 10 June 1920
• Docket Number: 6 Div. 987
• Parties: GANDY v. COPELAND.
• Court: Supreme Court of Alabama

86 So. 3

204 Ala. 366

GANDY v. COPELAND.

6 Div. 987

Supreme Court of Alabama

June 10, 1920

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action by A.J. Gandy, as administrator of the estate of Joseph Gandy, against John R. Copeland for damages for the death of his intestate. From a judgment sustaining demurrer to the complaint, plaintiff appeals. Affirmed.

James Barton and Burgin & Jenkins, all of Birmingham, for appellant.

Tillman Bradley & Morrow, of Birmingham, for appellee.

THOMAS J.

The appeal is from rulings sustaining demurrer to the complaint in its original form and as first amended and as last amended by the addition of counts K, Z, Z-1, Z-2, Z-3, and Z-4. Plaintiff declined to plead further, and there was judgment for defendant.

The several counts may be classified as being for simple negligence, framed on the theory of the "turntable cases" (amended counts K, Z-1, Z-2), and for the willful, wanton, or intentional conduct of defendant (amended counts Z, Z-3, and Z-4).

The owner or occupier of real estate, without protest or objection, may permit his land or premises to be so used by the public or others in such manner and for such time that those who thus use it may reasonably presume that the owner or occupier will give notice of a change in the condition made or permitted by him, which would render said place and its use unsafe so to continue its use. If, under such use by the public or others with permission, express or implied, and with knowledge of the same, the owner or occupier should place, leave, or permit to be placed or left a dangerous structure, instrument obstruction, or defect in said way, building, structure, or premises from which may be reasonably apprehended danger or injury to those accustomed to such use, such owner or occupier assumes the primary risk; that is to say, under such circumstances the owner or occupier is not exonerated from liability to another for injury resulting from such use, because the injured party was then on other business than with the owner or occupier. The knowledge of the use and condition thereof that was dangerous imposes the duty to keep the premises so used by such others in a reasonably safe condition for those who are requested or have a right to come there. Mudd v. Gray, 200 Ala. 92, 75 So. 468, 470; Sou. Ry. Co. v. Bates, 194 Ala. 78, 94, 69 So. 131, L.R.A.1916A, 510; Scoggins v. A. & G.P.C. Co., 179 Ala. 213, 221, 222, 60 So. 175; A.G.S. Ry. Co. v. Godfrey, 156 Ala. 202, 212, 47 So. 185, 130 Am.St.Rep. 76; Montg. & Eufaula Ry. Co. v. Thompson, 77 Ala. 448, 456, 54 Am.Rep. 72.

A mere trespasser who goes upon the premises of another on business of his own, not connected and associated with that transacted or carried on at such place by the owner or occupier, or who goes thereon as a mere pleasure seeker, or as one prompted only by curiosity, can claim from the owner or occupier of the premises no further duty than that traps or pitfalls may not be set or permitted in his way. Sic utere tuo ut alienum non laedas is, likewise, the basis of the leading cases on the question of liability for injuries that result from "traps and pitfalls," or from "attractive nuisances," or from causes in the nature of an attractive nuisance, where such doctrines have been applied. A.G.S.R. Co. v. Crocker, 131 Ala. 584, 590, 31 So. 561; Athey v. T.C.I. & R. Co., 191 Ala. 646, 651, 68 So. 154; Thompson v. Alexander City Cot. Mills Co., 190 Ala. 184, 190, 67 So. 407, Ann.Cas.1917A, 721; Clover Creamery Co. v. Diehl, 183 Ala. 429, 430, 63 So. 196; Scoggins v. A. & G.P.C. Co., supra; Sheffield Co. v. Morton, 161 Ala. 153, 161, 49 So. 772; Scheuerman v. Scharfenberg, 163 Ala. 337, 339, 50 So. 335, 24 L.R.A. (N.S.) 369, 136 Am.St.Rep. 74, 19 Ann.Cas. 937; O'Brien v. Tatum, 84 Ala. 186, 188, 4 So. 158; Sioux City & Pac. R. Co. v. Stout, 17 Wall. 657, 661, 21 L.Ed. 745; Union Pac. Ry. Co. v. McDonald, 152 U.S. 262, 273, 14 Sup.Ct. 619, 38 L.Ed. 434; Lynch v. Nurdin (1841) 1 Adolph & Ellis (N.S.) 29; s.c., 1 Q.B. 29, 35, 36; Scott v. Shepherd (Squibb Case 1773) 2 Wm.Bl. 892.

Looking to the counts as last amended and as appropriate to such questions of law, it is averred, in substance: (1) That a dangerous well, spring, reservoir, or cistern filled with water "was, and had been for a long time prior" to the injury complained of, located on defendant's premises in the city of Birmingham; that it was not covered or guarded so as to prevent people from falling therein and was attractive to children, who frequently resorted thereto for the purpose of playing in and with the water therein contained; (2) that defendant well knew at the time of the grievance complained of that said well, spring, reservoir, or cistern and the premises on which same was located were frequented and daily used as a playground by children, and that children frequently resorted thereto for the aforesaid purpose of playing with or in the water contained therein, and said premises were used by the general public for various purposes, and that many people passed and repassed in dangerous proximity thereto; (3) that said premises and said well, spring, reservoir, or cistern were in an unsafe, dangerous condition, and that defendant knew it, or by the exercise of common judgment and prudence should have known it, and it became and was the duty of the defendant to place a cover upon or guard or protect said well, spring, reservoir, or cistern, so that persons might not fall therein. It is further averred that while plaintiff's intestate, a minor of the age of, "to wit, nine years and three months, was playing at or near said well or spring and with the water therein contained, he fell into said well or spring, and as a proximate consequence thereof he was drowned in the water therein contained." The several counts conclude with the averments that intestate's death was proximately caused by the negligent failure of the defendant to cover, guard, or protect said well, spring, reservoir, or cistern. Such are counts K, Z-l, and Z-2. The willful and wanton counts (Z-3 and Z-4) follow the averments of the respective simple negligence counts (Z-1 and Z-2) by the averment of wanton, willful, or intentional conduct of the defendant in his failure or refusal to "cover up or Protect said well [spring, reservoir, or cistern] after being warned that same was in a dangerous condition and that children resorted thereto to play *** in and with the water therein contained."

Adverting to some of the recent cases by our court urged as having application, it is noted of A.G.S.R. Co. v. Crocker, supra, that the dangerous and attractive instrumentality causing the injury to the plaintiff was a "turntable kept by the defendant at its depot and yards in the city of Tuscaloosa"; that the child injured thereby (the plaintiff) was a trespasser. In Clover Creamery Co. v. Diehl, supra, the complaint approved averred that--

"Defendant had, at and before the time *** [of the injury] on its premises *** machinery that was attractive to children of plaintiff's age, and was exceedingly dangerous when left unguarded by fence, or in some other way [[describing the machinery];" that defendant "negligently permitted said machinery *** to be and remain *** unguarded by an inclosure of some character, *** although the defendant well knew that plaintiff, who was *** below the age of discretion, *** residing upon said premises, *** was constantly playing about said premises in close proximity to said machinery," etc.

In Thompson v. Alex. City Cot. Mills Co., supra, the instrumentality in question was a ditch used by defendant for carrying off hot water from its boilers, and plaintiff's intestate, who met his death therein, was a bare licensee. The court said:

"In most of the reported cases, the injured child was a trespasser, and not a licensee, as in this case. In all the cases in which defendants have been held liable under this doctrine, whether the injured person was a trespasser or a licensee, it was shown that the defendant either had actual knowledge, or was chargeable with knowledge, both of the dangerous character of the particular premises or agency and of the fact that the same was attractive to children, and that they were in the habit of trespassing, or would form the habit, if licensees, of playing in, upon, or with the dangerous agency." 190 Ala. 190, 67 So. 409, Ann.Cas.1917A, 721.

In the Sheffield Co. v. Morton Case the turntable doctrine was again discussed; the dangerous instrumentality causing the injury being a highly charged electric wire--a concealed, latent danger--which was not to be suspected by a child passing and injured thereby. The court said:

"Every theory of negligence works around to the question whether some one did or failed to do what a reasonably prudent and competent man would be expected to do under given circumstances. In determining what precautions were reasonably necessary and incumbent upon the defendant in the use of its property at the place in question, it must be held to have considered the known extent and nature of the use to which the place was customarily put by others than its owner. In Railroad Co. v. Stout, 17 Wall. 657, 21 L.Ed. 745, commonly known as the first of the 'turntable cases,' Judge Dillon, presiding at the trial, *** charged the jury in the following language: 'If the railroad company did not know, and had no good reason to suppose, that children would resort to the turntable to play, or did not know, or had no good reason to suppose, that if they resorted there they would be likely to get injured thereby, then you cannot find a verdict against them. But if the defendants did know, or had good reason to believe under the circumstances of the case, that the children

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