Lockridge v. Standard Oil Co., Ind., No. 18440

Docket NºNo. 18440
Citation114 N.E.2d 807, 124 Ind.App. 257
Case DateOctober 15, 1953
CourtCourt of Appeals of Indiana

Page 807

114 N.E.2d 807
124 Ind.App. 257
LOCKRIDGE

v.
STANDARD OIL CO., Inc. (INDIANA).
No. 18440.
Appellate Court of Indiana, In Banc.
Oct. 15, 1953.

[124 Ind.App. 259]

Page 808

Byron E. Bamber, Hammond, for appellant.

Richard P. Tinkham, John F. Beckman, Tinkham, Beckman & Kelly, Hammond, for appellee.

KENDALL, Chief Judge.

Appellant brought this action to recover damages for the wrongful death of appellant's son, William Arthur Lockridge, eight years of age, by reason of drowning in a pond of water on appellee's land.

The amended complaint alleged in substance that on June 16, 1945, and prior thereto, appellee owned and [124 Ind.App. 260] controlled certain lands in Whiting, Indiana, lying between two public streets, or highways;

Page 809

that the appellee maintained an excavation in close proximity to one of the streets, and that the bottom of said excavation was uneven, had drop-offs and holes seven to eight feet in depth; that the excavation was filled with water and that appellee kept, or harbored, a small raft in the pool; that the pool with the floating raft were visible from one of the streets and that children frequented said pool and were accustomed to wading and swimming therein and playing on the raft; that appellee had knowledge thereof and that the same constituted an attractive nuisance; that appellant's son was so attracted to the pool, and, while playing with the raft, fell into the water and drowned.

It is further alleged that the child went to the pool in question without knowledge of appellant who was at the time in the armed services; that the appellee company negligently failed to take any precaution to guard or warn children of the danger and further negatives any contributory negligence on the part of the child alleging that the child was too young to apprehend the danger which was alleged in the complaint.

Appellee company filed a demurrer to the amended complaint attaching memorandum in support thereof substantially as follows: (a) The appellee owed no duty to the child except not to injure him wilfully; (b) A child eight years of age is presumed to know and appreciate that the pool described in appellant's complaint is a danger which is obvious and common to nature, and (c) The pool of water described in the complaint does not constitute an attraction to children within the 'attractive nuisance' doctrine under the law of Indiana.

[124 Ind.App. 261] The demurrer was sustained by the court after which appellant refused to plead over and judgment was rendered against appellant and that the appellee company recover its costs.

The appellant assigns as error the court's ruling in sustaining appellee's demurrer to the amended complaint. The sole question, therefore, presented to this court is the correctness of the ruling of the trial court.

It is to be noted that the pond, or pool of water, involved in this litigation is the same and identical pool or pond which the Supreme Court in the case of Plotzki v. Standard Oil Co., 1950, 228 Ind. 518, 92 N.E.2d 632, 643, held did not constitute an 'attractive nuisance' and, therefore, the Plotzki boy, age eleven years, at the time he was drowned therein was a trespasser to whom Standard Oil Company owed no duty except to avoid wilfully injuring him. The appellant, however, contends that the Plotzki case, supra, is not controlling here because of two distinguishable circumstances. First, they allege that the appellee harbored a floating raft on the pool which was not present when the Plotzki boy lost his life, and, second, the appellant's decedent was a boy eight years old when he was drowned while the Plotzki boy was three years older and possessed greater knowledge of the dangers involved and a mature judgment concerning them.

The complaint in the Plotzki case, supra, and the present case both contained allegations of negligence that there were sharp drop-offs and holes in the bottom of the pool; that the water in the pool was not clear and could not be seem by children therein.

It is admitted that the pool was in open view from the street upon which the raft is alleged to have been. [124 Ind.App. 262] No allegation is made in the amended complaint that there was any hidden or latent defect to the raft or that said raft was in itself inherently dangerous. Appellant merely alleges that the raft was kept and harbored by the appellee upon the body of water in question. Regardless of the raft when the boy went into the body of water there was one danger and that was the danger of drowning. This type of danger was obvious and well known to a boy of this age. It generally is well known to children of tender years, equally well to adults, that going into such a body of water constituted a danger that is ever-present in any type of water be it a pond, lake, river, reservoir or open stream. To successfully come within the exception of the general rule, we believe the rule to be that the danger must

Page 810

be hidden or it must be a latent danger or the conditions or instrumentality must be inherently dangerous in itself. We see no reason how the raft in open view in a body of water which is visible was more inherently dangerous than the stepladder in the case of Neal v. Home Builders, Inc., Ind.Supp., 1953, 111 N.E.2d 280, 285; or the log bridge in Indianapolis Water Co. v. Harold, 1908, 170 Ind. 170, 83 N.E. 993.

The weight of authority is to the effect that the 'attractive nuisance' doctrine does not apply to conditions either natural or artificial which are common to nature, the dangers of which are obvious and known to children. Stendal v. Boyd, 1898, 73 Minn. 53, 75 N.W. 735, 42 L.R.A. 288; Thompson v. Illinois Central Railroad Co., 1913, 105 Miss. 636, 63 So. 185, 47 L.R.A., N.S., 1101; Peters v. Bowman, 1896, 115 Cal. 345, 47 P. 113, 598.

This rule is also announced in the case of Anderson v. Reith-Riley Const. Co., 1942, 112 Ind.App. 170, 44 [124 Ind.App. 263] N.E.2d 184, and cited with approval in the case of Plotzki v. Standard Oil Co., supra.

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10 practice notes
  • Martinez v. C. R. Davis Contracting Co., No. 7286
    • United States
    • New Mexico Supreme Court of New Mexico
    • January 13, 1964
    ...except where the float conceals an otherwise apparent risk, which we do not have in the present case. Lockridge v. Standard Oil Co., 124 Ind.App. 257, 114 N.E.2d 807; Rallo v. Heman Const. Co., 291 Mo. 221, 236 S.W. 632; Bass v. Quinn-Robbins Co., 70 Idaho 308, 216 P.2d 944; 36 A.L.R. The f......
  • Barbre v. Indianapolis Water Co., No. 2-1178
    • United States
    • Indiana Court of Appeals of Indiana
    • February 21, 1980
    ...228 Ind. 518, 92 N.E.2d 632; City of Evansville v. Blue (1937), 212 Ind. 130, 8 N.E.2d 224; Lockridge v. Standard Oil Co. (1954), 124 Ind.App. 257, 114 N.E.2d Our decision here is not changed or influenced by the well-recognized doctrine of attractive nuisance or the less settled principle ......
  • Swanson v. Shroat, No. 2--374A64
    • United States
    • Indiana Court of Appeals of Indiana
    • May 3, 1976
    ...to nature, e.g., deep water (City of Evansville, v. Blue (1937), 212 Ind. 130, 8 N.E.2d 224; Lockridge v. Standard Oil Co., Inc. (1954), 124 Ind.App. 257, 114 N.E.2d 807 and Harness v. Churchmembers Life Insurance Co. (1961), 241 Ind. 672, 175 N.E.2d 132); cave-ins of excavations, cliffs, a......
  • Ochampaugh v. City of Seattle, No. 45492
    • United States
    • United States State Supreme Court of Washington
    • January 5, 1979
    ...otherwise apparent risk. Supporting this statement, numerous cases are cited in that case, as well as in Lockridge v. Standard Oil Co., 124 Ind.App. 257, 114 N.E.2d 807 (1953) (where Barnhart v. Chicago, M. & St. P. Ry., supra, is cited) and Harriman v. Incorporated Town of Afton, 225 Iowa ......
  • Request a trial to view additional results
10 cases
  • Martinez v. C. R. Davis Contracting Co., No. 7286
    • United States
    • New Mexico Supreme Court of New Mexico
    • January 13, 1964
    ...except where the float conceals an otherwise apparent risk, which we do not have in the present case. Lockridge v. Standard Oil Co., 124 Ind.App. 257, 114 N.E.2d 807; Rallo v. Heman Const. Co., 291 Mo. 221, 236 S.W. 632; Bass v. Quinn-Robbins Co., 70 Idaho 308, 216 P.2d 944; 36 A.L.R. The f......
  • Barbre v. Indianapolis Water Co., No. 2-1178
    • United States
    • Indiana Court of Appeals of Indiana
    • February 21, 1980
    ...228 Ind. 518, 92 N.E.2d 632; City of Evansville v. Blue (1937), 212 Ind. 130, 8 N.E.2d 224; Lockridge v. Standard Oil Co. (1954), 124 Ind.App. 257, 114 N.E.2d Our decision here is not changed or influenced by the well-recognized doctrine of attractive nuisance or the less settled principle ......
  • Swanson v. Shroat, No. 2--374A64
    • United States
    • Indiana Court of Appeals of Indiana
    • May 3, 1976
    ...to nature, e.g., deep water (City of Evansville, v. Blue (1937), 212 Ind. 130, 8 N.E.2d 224; Lockridge v. Standard Oil Co., Inc. (1954), 124 Ind.App. 257, 114 N.E.2d 807 and Harness v. Churchmembers Life Insurance Co. (1961), 241 Ind. 672, 175 N.E.2d 132); cave-ins of excavations, cliffs, a......
  • Ochampaugh v. City of Seattle, No. 45492
    • United States
    • United States State Supreme Court of Washington
    • January 5, 1979
    ...otherwise apparent risk. Supporting this statement, numerous cases are cited in that case, as well as in Lockridge v. Standard Oil Co., 124 Ind.App. 257, 114 N.E.2d 807 (1953) (where Barnhart v. Chicago, M. & St. P. Ry., supra, is cited) and Harriman v. Incorporated Town of Afton, 225 Iowa ......
  • Request a trial to view additional results

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