Harriman v. Incorporated Town of Afton
| Citation | 281 N.W. 183,225 Iowa 659 |
| Decision Date | 05 August 1938 |
| Docket Number | 44308. |
| Parties | HARRIMAN v. INCORPORATED TOWN OF AFTON. |
| Court | United States State Supreme Court of Iowa |
Appeal from District Court, Union County; Homer A. Fuller, Judge.
Plaintiff as administrator of the estate of his deceased son, Robert Lester Harriman, brought this action at law to recover for the death of his decedent through drowning in an artificial pond or reservoir maintained by the defendant town of Afton. Following the introduction of testimony on the part of plaintiff, the defendant moved for a directed verdict upon the grounds that plaintiff's decedent was a trespasser and there was no evidence of any actionable negligence on the part of defendant; that the undisputed evidence established that the plaintiff was not entitled to the benefit of the attractive nuisance doctrine; that the undisputed evidence established contributory negligence on the part of plaintiff's decedent as a matter of law; and that defendant was engaged in a governmental function and therefore immune from liability. This motion was sustained by the trial court and judgment rendered thereon dismissing plaintiff's petition. Plaintiff appeals.
Affirmed.
O. M Slaymaker, R. E. Killmar, and D. D. Slaymaker, all of Osceola, for appellant.
Kenneth H. Davenport and Healey & Reynolds, all of Creston, for appellee.
Appellee, the Incorporated Town of Afton, owns and maintains a reservoir or pond for its use in connection with its water system, which reservoir covers an area of from three to five acres. The same is located about one-half mile west of the north side of the town of Afton. Paved Federal Highway #34 is situated immediately south of the reservoir, and a railroad track is south of said highway. The real estate upon which the reservoir is situated is owned by the appellee town, and on May 20, 1936, no fence had been erected around the same. The pumping station connected therewith is located across the pavement south from the reservoir, and was in charge of one Elmo Gorman, an employee of the appellee town, whose duties consisted of reading light and water meters, pumping water, and general supervision of the town's waterworks. Sometime prior to May 20, 1936, Gorman caused a raft to be constructed for his use in going upon the reservoir and measuring the water at the end of a pipe. This raft was constructed of two bridge planks from two to two and a half inches thick, which were cleared together, with a small space between the two planks. When not in use, this raft was usually secured by driving a pole between the two planks into the mud close to the bank; although appellant testified that he had frequently seen it unsecured and loose upon the reservoir.
On May 20, 1936, at about 1 o'clock P. M., the decedent, Robert Lester Harriman, who was then between 13 and 14 years of age, together with his brother William, age 11 years; Billy Henderson, age 11 years, and Billy Porter, age 11 years, left the town of Afton for the purpose of riding on this raft. None of the boys, other than decedent, had ever ridden on this raft, or knew of its existence. The decedent informed them of the existence of the raft and all went upon his solicitation. The boys in leaving the town walked along the railroad track to the pump station, and then cut north across the pavement to the reservoir. They found the raft unsecured in the water, in the northeast corner of the reservoir. The boys located a couple of boards to use as oars. The Henderson boy and the Porter boy were scared and reluctant about getting on the raft, and decedent stated, " I will go out first and show you guys that she won't sink", whereupon he got on the raft and paddled the same to about the middle of the reservoir. He then came back and the Porter boy got on the raft with him, and these two paddled out in the reservoir some distance, and again came back. Thereupon the Henderson boy got on the middle of the raft, with the decedent and the Porter boy at the two ends thereof. When the raft had proceeded about five yards from the shore the Henderson boy stepped toward decedent, causing that end of the raft to partly submerge, whereupon decedent said, " The raft is going to sink, so I am going to jump", whereupon he jumped from the raft toward the shore, and was drowned. The town's employee, Gorman, was not at the reservoir at the time in question, and the only witnesses to the drowning were the three boys named. Appellant testified that prior to the day in question he had at different times seen small boys upon this raft, and that he had informed the Mayor of appellee that he had seen children on the raft, and that he thought it was dangerous.
It is contended by appellant that even though his decedent may have been a technical trespasser, yet the maintenance of the pond or reservoir with the raft thereon by the appellee town constituted the maintenance of an attractive nuisance, and that therefore the case should have been submitted to the jury for its determination.
Following the opinion in Sioux City & P. R. Co. v. Stout, 17 Wall. 657, 21 L.Ed. 745, the attractive nuisance doctrine has given rise to a great divergence of judicial opinion; and, likewise, the various courts of last resort are not in harmony as to the underlying principle. Some of the courts treat the doctrine as an exception to the general rule of non-liability to trespassers, an exception born of necessity and applied out of consideration for the irresponsibility of infancy; while other courts invoke the doctrine only in cases where an invitation can be implied from the acts of the landowner, upon the theory that the temptation of an attractive plaything to a child of tender years is equivalent to an express invitation to an adult. An examination of our cases reveals that we are committed to the doctrine that the rule has its foundation in an implied invitation, that is, that the appliance in question, although its danger is apparent to those who have reached years of discretion, is so enticing or alluring to children of tender years, as to induce them to approach, get upon and use the appliance, and that this attractiveness amounts to an implied invitation to such children; and as a result of this implied invitation to enter upon the premises, or to use the dangerous instrumentality, children in so doing are not trespassers but become invitees. In the case of Davis v. Malvern Light & Power Co., 186 Iowa 884, 173 N.W. 262, the following language is used (page 263):
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If, in the instant case, the attractive nuisance doctrine is not applicable, then it follows that appellant's decedent was plainly a trespasser, and as a trespasser the appellee town owed him no duty other than not to injure him wilfully or wantonly, and to use reasonable care, after his presence on the premises became known, to avoid injuring him. Davis v. Malvern Light & Power Co., supra; Gregory v. Woodworth, supra; Connell v. Keokuk R. Co., 131 Iowa 622, 109 N.W. 177; Brown v. Rockwell City Canning Co., 132 Iowa 631, 110 N.W. 12; Anderson v. Fort Dodge R. Co., 150 Iowa 465, 130 N.W. 391; Hart v. Mason City B. & T. Co., 154 Iowa 741, 135 N.W. 423, 38 L.R.A.,N.S., 1173; Wilmes v. Chicago G. W. R. Co., supra. There is no claim that the appellee town injured appellant's decedent wilfully or wantonly, and, likewise, his presence upon the premises in question was not discovered by the town or officers until after his death.
In the case of Edgington v. Burlington R. Co., 116 Iowa 410, 90 N.W. 95, 57 L.R.A. 561, a young girl between the years of 7 and 8 was injured upon a turntable. In a very lengthy and enlightening opinion this court therein analyzed numerous cases wherein this doctrine was involved, and therein definitely established such doctrine as the law of this state. Following that opinion this court has continued to recognize this doctrine as the established law of this state. In the case of McKiddy v. Des Moines Electric Co., 202 Iowa 225, 206 N.W. 815, the opinion states that ever since the Edgington Case we have recognized the attractive nuisance doctrine, therein citing a number of cases wherein the same had been involved. Therein we stated that from an examination of the prior cases involving this doctrine, that certain general rules appear to be definitely established as essential to the creation of liability for injury to a child who is, in the eyes of the law, a technical trespasser. Therein we stated that it must appear that the defendant knew, or was chargeable with knowledge, of the...
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