McCall v. McCallie
Decision Date | 01 December 1933 |
Docket Number | 23086. |
Citation | 171 S.E. 843,48 Ga.App. 99 |
Parties | McCALL v. McCALLIE et al. |
Court | Georgia Court of Appeals |
Syllabus by Editorial Staff.
Landowners held not liable for death of 9 year old boy drowned in artificial pond on theory that they maintained "attractive nuisance" and failed to provide warnings of deep hole or because they failed to rope hole off to exclude small children.
Landowner is not required to provide against remote or improbable injuries to children playing upon his land.
"Attractive nuisance" doctrine does not apply to natural condition or common dangers existing in order of nature; it being parents' duty to warn children of such dangers.
"Attractive nuisance" doctrine being inapplicable to ponds where there is no unusual danger did not apply to pond with deep hole, known to landowners, but not to boy drowned therein.
Landowner although knowing children habitually bathe in pond on his premises, is generally not obliged to erect barriers or take other precautions to prevent children from being injured thereby.
Attractiveness of body of water or its nearness to public highway does not take it out of rule that "attractive nuisance" doctrine does not apply to bodies of water where there is no unusual danger.
Invitation made to mother in 9 year old son's presence to take family and go bathing in pond on defendants' premises held not invitation to son making him "invitee," as regards bathing in pond without mother.
Customary permissive use of pond on defendants' premises for swimming held not to constitute users "invitees."
"Invitee" under implied invitation, as distinguished from mere "licensee," must come upon premises for benefit real or supposed, of owner or occupant, or in matter of mutual interest, or in usual course of business, or for performance of some duty, but invitation may be implied from any state of facts upon which it naturally and necessarily arises.
"Licensee" is person who is neither customer, servant, nor trespasser and stands in no contractual relation with owner of premises but is permitted, expressly or impliedly, to go thereon merely for his own interest, convenience, or gratification.
Landowner owes licensee no duty of keeping premises to any standard of safety, except that premises must not contain pitfalls, mantraps, and like dangers.
Error from Superior Court, Walker County; James Maddox, Judge.
Suit by Mable McCall against R. R. McCallie and others. To review a judgment sustaining general demurrers of defendants and dismissing the petition, plaintiff brings error.
Affirmed.
Maddox, Matthews & Owens, of Rome, and Rosser & Shaw, of La Fayette, for defendants in error.
Syllabus OPINION.
1. Where plaintiff's infant son, 9 years old, in company with another, went upon the premises of the defendants to bathe in an artificial pond thereon, used for supplying water for the engines of one of the defendants, a railroad company, and formerly used as a public swimming and fishing resort by the other defendants, but then used by children and others for bathing purposes, which use was permitted and acquiesced in by these defendants, and stepped into a deep hole in the pond and was drowned, the defendants were not liable to the plaintiff for the death of her son in that they maintained an attractive nuisance and failed to provide signs or other warning that the deep hole was in the pond, or in that they failed to have ropes or cables around the hole so as to keep small children from stepping into the same. Savannah, etc., Ry. Co. v. Beavers, 113 Ga. 399 et seq., 39 S.E. 82, 54 L.R.A. 314; City of Rome v. Cheney, 114 Ga. 194, 39 S.E. 933, 55 L.R.A. 221; 20 R.C.L. 96; 45 C.J. 779; note L.R.A. 1917F, 109; note, 36 A.L.R. 224; note, 60 A.L.R. 1453; Williams v. Kansas City, etc., R. Co., 222 Mo.App. 865, 6 S.W.2d 48; Moran v. Pullman Palace Car Co., 134 Mo. 651, 36 S.W. 659, 33 L.R.A. 755, 56 Am.St.Rep. 543; Maruska v. Missouri, etc., R. Co. (Tex. Civ. App.) 10 S.W.2d 211.
(a) While it is true that it is actionable negligence for one to leave unguarded on a part of his own premises, which he knows is frequented by children of tender years for the purpose of play, a dangerous thing or condition which may injure such children, he is not required to provide against remote or improbable injuries to children playing upon his land, and as to a natural condition or common dangers existing in the order of nature, the attractive nuisance doctrine does not apply, and it is the duty of parents to warn their children of such dangers. By the great weight of authority, the attractive nuisance doctrine has been held not to apply to ponds, where there is no unusual danger. The fact that the pond had a deep hole therein, which was known to the defendants and not known to plaintiff's son, would not operate to take the cause out of the above rule. Klix v Nieman, 68 Wis. 271, 32 N.W. 223, 60 Am.Rep. 854; Moran v. Pullman Palace Car Co., supra. The danger from fire or water is one that even young children may be said to apprehend. Although an owner of land may know of the habit of children to visit a pond on his premises and bathe, he is as a rule under no obligation to erect barriers or take other precautions to prevent them from being injured thereby. 20 R.C.L. 95, 96,...
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