Hedgepath v. City of Durham

• Decision Date: 12 January 1944
• Docket Number: 749.
• Citation: 28 S.E.2d 503,223 N.C. 822
• Parties: HEDGEPATH v. CITY OF DURHAM.
• Court: North Carolina Supreme Court

28 S.E.2d 503

223 N.C. 822

HEDGEPATH v. CITY OF DURHAM.

No. 749.

Supreme Court of North Carolina

January 12, 1944

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 accord with the proposition that one who maintains upon his premises a condition, instrumentality, machine, or other agency which is dangerous to children of tender years by reason of their inability to appreciate the peril therein, and which may reasonably be expected to attract children of tender years to the premises, is under a duty to exercise reasonable care to protect them against the dangers of the attraction. Within the limitations herein considered, the doctrine is for the benefit of a meddling, as well as of a trespassing, child. The result of such doctrine is that one is negligent in maintaining an agency which he knows, or reasonably should know, to be dangerous to children of tender years, at a place where he knows, or reasonably should know, children of tender years are likely to resort, or to which they are likely to be attracted by the agency, unless he exercises ordinary care for the protection of such indiscreet and youthful persons'. In Par. 145, on the same subject at p. 811, it is written: 'If the place or appliance cannot be said to possess a quality calculated to attract children generally, it must be shown that to the defendant's knowledge the injured child or others were in the habit of using it. Knowledge of the...