Mellas v. Lowdermilk, 5746

• Decision Date: 05 June 1954
• Docket Number: No. 5746,5746
• Citation: 271 P.2d 399,58 N.M. 363,1954 NMSC 57
• Parties: MELLAS v. LOWDERMILK et al.
• Court: New Mexico Supreme Court

Page 399

271 P.2d 399

58 N.M. 363

MELLAS v. LOWDERMILK et al.

No. 5746.

Supreme Court of New Mexico.

June 5, 1954.

Keleher & McLeod and John B. Tittmann, Albuquerque, for appellants.

Harry L. Bigbee, Donnan Stephenson and Claude S. Sena, Santa Fe, for appellee.

LUJAN, Justice.

On July 20, 1952, George Mellas, nine years, one month and four days old, was drowned in a pond located on a tract of land belonging to the defendants. Subsequently this action was brought by his father, Mike Mellas, as administrator of his son's estate, to recover for his alleged wrongful death. Sec. 24-101 et seq. 1941 Comp. A jury trial resulted in a verdict and judgment in favor of the plaintiff for $22,500.

Defendants' motions for a directed verdict, both at the end of plaintiff's case and at the close of the entire case, and their subsequent motion for a judgment non obstante veredicto were denied, and defendants have appealed.

This suit is brought upon the theory that the defendants maintained upon their premises an attractive nuisance and in this connection the complaint alleged that for a considerable period of time the defendants were the possessors of land within the community of Fairview in Rio Arriba County; that they negligently maintained an artificial body of water, one which the defendants knew or should have known, and which they realized or should have realized, involved unreasonable risk of death or bodily harm to the decedent. Paragraph ten alleges:

'That by reason of the negligent maintenance of the aforesaid artificial condition and its appearance, it was attractive to children of tender years in general, including the minor decedent and other children similarly situated, and was calculated to and did arouse his and their childish curiosity and desire to play therein and thereabout, and by reason thereof constituted an attractive nuisance, all of which said facts were known or in the exercise of ordinary care should have been known to the defendants.'

The defendants own and operate a heavy construction business, being engaged primarily in the construction of highways. The property is situated along the Rio Grande River where a pond was constructed during the winter of 1945-46, when certain flood control work was done by the Bureau of Reclamation, which resulted in a dike cutting off a prior bend in the river. River water seeped into the depression behind the dike, forming a pond in the shape of a horse shoe. A diving board was erected on one of the banks. The pond contained fish and had a growth of weeds at the bottom. This pond is located four hundred paces or approximately one thousand feet west from U. S. Highway 64 and is not visible therefrom. A raft nineteen feet long and six feet nine inches wide, constructed of two 12 X 16 timbers and 6 X 8 boards bolted and nailed together, is kept on the pond for the purpose of testing and servicing pumps which are used to pump water into a large storage tank. The water is used to irrigate an orchard and lawns as well as for fire protection and to service heavy construction equipment. This raft is propelled by a long pole. During the summers of 1949-1950 or 1950 and 1951 the defendants permitted the Espanola High School coach to use said pond in conducting swimming lessons for school children. It was never dedicated to the public as a play ground, nor was it open to the public. The premises were fenced in and posted with 'no trespassing' and 'no swimming' signs.

The defendants claim that the court erred in overruling their motions for a directed verdict, both at the end of the plaintiff's case and at the close of the entire case.

The general rule of law applicable to this case, and which is approved by the great weight of authorities, is found in 20 R.C.L. on Negligence in Section 85, page 96, and reads as follows:

'Ponds, pools, lakes, streams, and other waters embody perils that are deemed to be obvious to children of the tenderest years; and as a general proposition no liability attaches to the proprietor by reason of death resulting therefrom to children who have come upon the land to bathe, skate, or play. * * *'

The author goes on to say that a right of recovery has been denied in cases where children from five to eleven years of age have lost their lives by drowning, although the property owner knew of the habit of children.

And in 56 Am.Jur. Section 436, page 850 the author says:

'The weight of authority is to the effect that ponds, pools, lakes, streams, reservoirs, and other waters do not constitute attractive nuisance, at least in the absence of any unusual element of danger. * * *

'In some cases, the view has been taken that the proprietor may be held liable where some additional or unusual element of danger is involved in the situation, as where the pond or pool is in close proximity to a highway or a playground, or where it is located in an urban or densely populated community, but the weight of authority appears to hold to the contrary, except where the facts bring the case within the rule respecting pitfalls or hazards adjacent to highways.' (Emphasis ours.)

The elaborate note in 8 A.L.R.2d on pages 1299-1300, Section 43, contains reference to several decisions from different states holding that the average child of seven, eight, nine, ten and eleven years of age is charged with the knowledge of the dangers of drowning. And beginning on page 34 of 36 A.L.R. will be found a very exhaustive annotation on the doctrine of attractive nuisance. The case with reference to ponds and pools of water are collected on pages 224 to 227, inclusive. See, also, annotations in 45 A.L.R. 990; 53 A.L.R. 1355; and 60 A.L.R. 1453.

The following cases deal with the specific question of the maintenance of ponds, with rafts or logs in the water, on private property. They are peculiarly applicable to this case, and under them no liability could attach. Robbins v. City of Omaha, 100 Neb. 439, 160 N.W. 749; Barnhart v. Chicago, M. & St. P. Ry. Co., 89 Wash. 304, 154 P. 441, L.R.A.1916D, 443; Harriman v. Incorporated Town of Afton, 225 Iowa 659, 281 N.W. 183, 184; Bass v. Quinn-Robbins Co., Inc., 70 Idaho 308, 216 P.2d 944; Baker v. Fruin-Colnon Contracting Co. (Terminal Railroad Association of St. Louis), 271 Ill.App. 300; and Hanna v. Iowa Central Railway Company, infra. See, also, McCall v. McCallie, 48 Ga.App. 99, 171 S.E. 843.

In Anderson v. Reith-Riley Construction Co., 112 Ind.App. 170, 44 N.E.2d 184, 185, Judge Flanagan said:

'Nature has created streams, lakes and pools which attract children. Lurking in their waters is always the danger of drowning. Against this danger children are early instructed so that they are sufficiently presumed to know the danger that if the owner of private property creates an artificial pool on his own property, merely duplicating the work of nature without adding any new danger, and a child, without invitation, ventures on the private property, enters the pool and is drowned, the owner is not liable because of having created an 'attractive nuisance."

There is nothing in the record to contravene the legal presumption that George Mellas, a boy nine years old, had the capacity to comprehened and avoid the danger he incurred in going upon the raft in the pond where he had been the day before and was aware of the depth of the water. Fully comprehending the danger, and not using care and self-control to avoid it, he was guilty of contributory negligence as a matter of law. Heimann v. Kinnare, 190 Ill. 156, 60 N.E. 215, 52 L.R.A. 652, 83 Am.St.Rep. 123; Hanna v. Iowa Central Railway Company, 129 Ill.App. 134.

Bobby Jones, who, with his brother and George Mellas went to the pond in question on the fatal day was called as a witness for the plaintiff and he testified as follows:

'Q. I wonder Bobby if you would just tell the jury here in your own words what happened on that day. Just start out and tell the jury like you would tell me or anyone else. A. Well, we went out to Lowdermilks and we were swimming out there the day before, and we went out there the next day we got on the raft and we were pulling out in the water, I got off on the shore, my brother and George were out there on the raft yet--then they went out farther, almost to the other side. The went to the center again and then George jumped off. My brother told him he had better get back on but he wouldn't do it. He started to dog paddle but he didn't make it, and he went under and never did come up again.

* * *

* * *

'Q. What did your brother do? A. He tried to give him the pole and he wouldn't take it. Then he tried to pole the raft over close enough for him to grab it and he went under before he ever got over there.'

On cross-examination he testified:

'Q. Was this raft a strong raft? A. Yes, sir.

'Q. It held your weight all right, all three of you, didn't it? A. Yes, sir, it held those other seven boys with us too.

'Q. Didn't wiggle or tip, or anything like that? A. No.

'Q. How come George went off into the water? A. He jumped...