Hedgepath v. City Of Durham, 749.

Citation223 N.C. 822,28 S.E.2d 503
Decision Date12 January 1944
Docket NumberNo. 749.,749.
PartiesHEDGEPATH. v. CITY OF DURHAM.
CourtUnited States State Supreme Court of North Carolina

223 N.C. 822
28 S.E.2d 503

HEDGEPATH.
v.
CITY OF DURHAM.

No. 749.

Supreme Court of North Carolina.

Jan. 12, 1944.


[28 S.E.2d 504]

Appeal from Superior Court, Durham County; Hubert E. Olive, Special Judge.

Action by Rosa Lee Hedgepath, administratrix of Charles Lee Hedgepath, against City of Durham for alleged wrongful death of plaintiff's intestate. From a judgment for defendant as in case of nonsuit, the plaintiff appeals.

Affirmed.

This action was instituted for the alleged wrongful death on 22 May, 1942, of the plaintiff's intestate, Charles Lee Hedgepath, a child of ten years of age.

The evidence tends to show that the defendant, City of Durham, in the grading of Lee Street, constructed a fill across a wet weather branch, and placed under the fill a pipe through which to drain the water; that a rain came and the pipe, because stopped up, was insufficient to carry the water off as fast as it came into the wet weather branch, and as a result there formed on the south side of Lee Street on an adjoining vacant lot a pool or pond of water, which in places reached a depth of 12 or 15 feet; that the plaintiff's intestate, and four other children, went to the pool to settle a discussion which arose as to who could best swim, the intestate or his companion, Eddie Dyer; that when the boys reached the pool the intestate, Charles Lee Hedgepath, took off his clothes and dived into the water, and the water being over his head and he not being able to swim, was drowned.

The action of the plaintiff is bottomed upon the theory that the defendant maintained an attractive nuisance that lured children, including the plaintiff's intestate, an immature child, and failed to exercise due care to protect such children from the dangers incident thereto, and that this failure to exercise due care was negligence that proximately caused the death of said intestate.

Upon the plaintiff resting her case, the defendant moved the court to dismiss the action and for judgment as in case of nonsuit, and upon the close of all the evidence renewed its motion theretofore made, which was allowed (C.S. § 567), and from judgment predicated on such ruling the plaintiff appealed, assigning errors.

R. M. Gantt, of Durham, for plaintiff, appellant.

Claude V. Jones, of Durham, for defendant, appellee.

SCHENCK, Justice.

In 38 Am.Jur., Negligence (subhead Attractive Nuisances), Par. 142, it is written: "While the doctrine has been variously stated, the courts which accept it generally are in substantial...

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