Larnel Builders, Inc. v. Martin, 58-6

• Citation: 105 So.2d 580
• Decision Date: 30 September 1958
• Docket Number: No. 58-6,58-6
• Parties: LARNEL BUILDERS, Inc., a Florida corporation, Appellant, v. James C. MARTIN, as natural father, next friend and surviving father of Carl Martin, deceased infant, Appellee.
• Court: Florida District Court of Appeals

Page 580

105 So.2d 580

LARNEL BUILDERS, Inc., a Florida corporation, Appellant, v. James C. MARTIN, as natural father, next friend and surviving father of Carl Martin, deceased infant, Appellee.

No. 58-6.

District Court of Appeal of Florida, Third District.

Sept. 30, 1958.

Rehearing Denied Oct. 29, 1958.

Dixon, DeJarnette, Bradford & Williams, Miami, for appellant.

Eaton & Achor, Miami, for appellee.

CARROLL, CHAS., Chief Judge.

Appellee James C. Martin filed an action under § 768.03, Fla.Stat., F.S.A., charging appellant with negligently causing the death of Carl Martin, his minor child, aged seven. The trial resulted in a jury verdict of $26,000 for plaintiff. This appeal is from the judgment entered on that verdict.

In appellant's brief it has grouped the argument backed by twenty assignments of error into three points, contending (1) that the circumstances did not present or constitute an attractive nuisance, (2) that the court should have granted appellant's motion, made at the trial, to include a defense of contributory negligence, (3) that it was error to allow to be exhibited in evidence a motion picture showing the deceased child's parents with others at the scene.

The complaint alleged that the defendant was engaged in developing 'a large tract of substandard wasteland into a subdivision for homesites,' and had obtained permission from the county commission to excavate on the land to provide a lake and drainage canal. Regarding negligence, the complaint contained the following:

'3. Prior to January 2, 1957 the defendant began to excavate for a deep drainage canal in Block 46 of said above-described property. The defendant knew that said excavation was adjacent to a housing development near a school ground and where many small children lived, and in an area where said children could see and be attracted to the huge pile of loose sand and gravel, a novel and unique sight, which was piled on the bank alongside the excavation. The defendant placed the pile of sand and gravel in such manner as children and adults alike could not see or know the existence of a water filled excavation on the far side of said sand and gravel pile. The defendant knew the excavation was filled with water in excess of ten feet in depth.

'4. The defendant piled the huge pile of sand and gravel in such negligent and careless manner that Carl Martin, a child of tender years, was attracted to it on January 2, 1957. The defendant negligently and carelessly failed to provide signs, warnings, watchmen, or other means of protection to the children playing in the area.

'5. On January 2, 1957 Carl Martin, aged seven years, was attracted to said huge pile of sand and gravel and while there fell into the deep waters and drowned.'

The answer admitted the development undertaking, the existence of the canal and spoil bank, and that the Martin child fell in the water and was drowned. The answer denied the other material allegations and, for defense, averred the following:

'3. In answer to paragraph 2, the defendant says that the land was level in one sense of the word, in that it was not mountainous; but on the other hand, it was rocky and not perfectly level.

'4. In answer to paragraph 3, the defendant admits that the excavation made was in vacant property adjacent to a housing development, but not immediately adjacent thereto. Between the housing development and the excavation there was a highway, a strip of land more than one hundred feet wide between the highway or roadway and the canal. Defendant says that in excavating the canal, the spoil bank was thrown up between the canal and the roadway, and the spoil bank consisted of rock, gravel and some sand; but that it was not a novel or unique sight, and whether or not any person knew water existed in the excavated place depended upon how the person approached the canal.

'7. Further answering the complaint, the defendant says that the deceased was not attracted to the place where he met his death by reason of the water and sand, and that he came to his death by reason of having lost his balance while throwing rocks at a stick that the deceased had placed in the water.'

The trial court was not in error in denying the defendant's motion for directed verdict, and in permitting the case to go to the jury on the attractive nuisance doctrine. The deceased child and a companion were attracted by the high mound of spoil and went...