Luallen v. Woodstock Iron & Steel Corporation

• Decision Date: 06 October 1938
• Docket Number: 7 Div. 485.
• Citation: 184 So. 182,236 Ala. 621
• Court: Alabama Supreme Court
• Parties: LUALLEN v. WOODSTOCK IRON & STEEL CORPORATION.

184 So. 182

236 Ala. 621

LUALLEN v. WOODSTOCK IRON & STEEL CORPORATION.

7 Div. 485.

Supreme Court of Alabama

October 6, 1938

Rehearing Denied Nov. 10, 1938.

Appeal from Circuit Court, Calhoun County; Lamar Field, Judge.

Action under Homicide Act, Code 1923, § 5696, by John W. Luallen, as administrator of the estate of Cecil Luallen, deceased against the Woodstock Iron & Steel Corporation. Judgment for defendant, and plaintiff appeals.

Affirmed.

Rutherford Lapsley, of Anniston, and Hugh A. Locke, of Birmingham, for appellant.

Knox Acker, Sterne & Liles and Fred L. Blackmon, all of Anniston for appellee.

GARDNER Justice.

Upon the discontinuance by defendant of the operation of its furnace on a tract of land in Anniston, there was left uncovered a cemented pit or excavation, more than five hundred feet in length and fifteen feet in width. Rain water accumulated and continued in this pit for several years, varying in depth from five to twenty feet. The cement side walls are perpendicular, and the pool was unenclosed. It is situated on the west side of the tract approximately one hundred and fifty to two hundred feet from the highway that parallels the Southern Railway right-of-way, on the east side of the tracks which are between the pool and the highway.

At first a number of notices against trespassing were placed on the property, and a watchman employed, but the services of a watchman were discontinued several years ago, and no notices posted in the last two or three years, though the defendant's president states "the property was posted innumerable times; * * * we did not invite the public at any time to use that property for passage ways or playgrounds or anything else. We attemped to prevent the public from using the property." He admits there are paths on the property where people are constantly crossing, and that "people are constantly on that property." He further states: "I did not know or was not called to my attention that children were playing around this pool or using that part of it as a playground."

A number of children resided with their parents on "Furnace Hill" across the highway from this property, and plaintiff offered proof that children had been frequently seen playing around this pool, and many of the public walked across the property. The pool was of course open to full view.

Plaintiff's child, a boy eight years of age, was with his companion playing, with a stick in the water, on the side of the pool when he lost his balance and fell in, and was drowned. Hence this suit, the result of which was a verdict for defendant, following the giving of the general affirmative charge in its favor. And this action of the court presents the question of prime importance on this appeal.

Upon principles now well established in this Court, the ruling of the trial court is to be sustained. That a child, as well as an adult, may be a trespasser is well settled (Ford v. Planters' Chemical & Oil Co., 220 Ala. 669, 126 So. 866), and we think that under the uncontroverted proof plaintiff's intestate must be held to have been a trespasser.

While counsel for plaintiff disclaim any reliance upon the doctrine of attractive nuisance, yet it would seem their argument tends to show that in large part plaintiff's case must rest upon that doctrine, and some of their cited authorities so disclose.

In Cobb v. Lowe Mfg. Co., 227 Ala. 456, 150 So. 687, after freely admitting that pools have a lure for children, the Court added [page 688]: "But this court, in line with reason and the great weight of authority, has declined to extend the doctrine of attractive nuisance to such conditions, so as to impose on the owner of property a legal duty to erect barriers, or other safeguards to protect children, not invitees, from water hazards. They exist everywhere in nature, and take a toll of the lives of adventurous youth, and betime those of very tender years." This holding was in perfect accord with the previous decisions of the Court. Cox v. Alabama Water Co., 216 Ala. 35, 112 So. 352, 53 A.L.R. 1336; Eades v. American Cast-Iron Pipe Co., 208 Ala. 556, 94 So. 593; Ellison v. Alabama Marble Co., 223 Ala. 371, 136 So. 787; Athey v. Tenn. Coal, Iron & R. Co., 191 Ala. 646, 68 So. 154. See, also, W. F. Bradley Lumber Co. v. Crowell, Ala. App., 178 So. 66, certiorari denied 235 Ala. 223, 178 So. 68.

And we have held the doctrine of the "turntable" cases is inapplicable where the danger is obvious and patent. Williams v. Bolding, 220 Ala. 328, 124 So. 892; Ford v. Planters' Chemical Co., supra.

Looking at the proof most favorably to plaintiff, all that appears is that defendant knew there were those who constantly trespassed upon its property, and the further fact, though not traced directly to defendant's knowledge, that children often played around the pool.

Answering a like situation, this Court in Ellison v. Alabama Marble Co., supra, said:

"Nor did the fact that people, including children, were in the habit of congregating and playing upon the premises upon which the hole was located, and traveled a path near said

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