Negligence—Dangerous Premises.
Where an infant was drowned in a reservoir maintained by defendant for use in its business in an open field near the public highway, and among the residences of a city, where children were accustomed to play, with knowledge of the defendant, and was unguarded, defendant was liable to the parents of the infant.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 37, Negligence, § 54.]
Appeal from Common Pleas Circuit Court of Laurens County; R. O. Purdy, Judge.
Action by R. J. Pranks against the Southern Cotton Oil Company and R. H. Hudgens. Prom an order overruling demurrers to the complaint, defendants appeal. Affirmed.
This is an appeal from an order overruling a demurrer to the complaint, on the ground that it does not state facts sufficient to constitute a cause of action. The first paragraph of the complaint alleges the corporate existence of the defendant; and the other paragraphs are as follows: "That the defendant R. H. Hudgens is now, and at the times hereinafter stated was, the manager of the cotton seed oil mill located at Laurens, S. C, and owned and operated by the defendant the Southern Cotton Oil Company. That the plaintiff is the qualified administrator of the estate of Luther Franks, deceased, who departed this life intestate on the 20th of April, 1906. That on the 20th day of April, 1906, and prior thereto, the defendant the Southern Cotton Oil Company owned, and jointly with its manager, R. H. Hudgens, maintained and used in connection with its oil mill at Laurens, S. C, a large and deep reservoir, which it kept filled with water
to be used in connection with the said oil mill, said reservoir being located in an open field, near the public highways, streets, and many of the residences of the city of Laurens, where children of tender years were accustomed to resort for play, the said reservoir being not protected by a fence, guard, or otherwise, but was exposed and easily accessible to children, who, not knowing of the danger, made use of it as a place of amusement. That it was the duty of the defendant the Southern 'Cotton Oil Company, and also the defendant R. H. Hudgens, as manager of the said oil mill, to have securely protected the said reservoir, so that children resorting to it as a place of amusement would not be injured, but the said defendants, not regarding their duty in that behalf, carelessly, negligently, willfully, and wantonly permitted the said reservoir to remain uninclosed and unprotected in any way. That the defendant the Southern Cotton Oil Company, as well as the defendant R. H. Hudgens, knew of the unprotected condition of the said reservoir, and that children resorted there as a place of amusement, which facts this plaintiff is informed and believes, and so alleges, had been more than once called to the attention of the defendants, with the request that said reservoir be properly protected. That the plaintiff's intestate, Luther Franks, a small boy of tender years, being less than 10 years of age, while playing around the said reservoir, which was filled with water, was drowned. That the plaintiff is the father of the said Luther Franks, deceased, and Mrs. Nannie Franks is his mother, for whose benefit this action is brought. * * *" The defendant demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, in that it does not show that the injuries of the deceased were the result of a failure on the part of the defendant to perform any duty it owed to the deceased. Under the authority of Bridger v. Railroad, 25 S. C. 24, and Pekin v. McMahon, 154 111. 141, 39 N. E. 484, 27 L. R. A. 206, 45 Am. St. Rep. 114, his honor, the presiding judge, overruled the demurrer, and the defendant appealed.
Mitchell & Smith, Sheppard, Grier & Park, and Dial & Todd, for appellant.
Simpson, Cooper & Rabb, for respondent.
GART, A. J. (after stating the facts as above). The appeal raises the single question whether the defendants owed a duty to the deceased in regard to the reservoir. In the case of Bridger v. Railroad, 25 S. C. 24, this court followed the doctrine announced in Sioux City, etc., v. Stout, 17 Wall. (U. S.) 657, 21 L. Ed. 745, the first of which are known as the turntable cases, in which it was held that an infant could recover for an injury causing him damages as the result of a failure on the part of the railroad company to keep its turntable locked or properly guard-ed. If that principle is applicable to this case, it is conclusive of the question under consideration. The United States Supreme Court has not confined the doctrine to turntable cases, but has applied it in other cases, notably in Union, etc., R. R. v. McDonald, 152 U. S. 262, 279, 14 Sup. Ct. 619, 626, 38 L. Ed. 434, where it was held that the railroad company was guilty of negligence in leaving unguarded the slack pile, made by it, in the vicinity of its depot building. The court in that case uses this language: "In Townsend v. Wathen, 9 East, 277, 281, it was held that if a man place dangerous traps, baited with flesh, in his own ground, so near to a highway, or to the premises of another, that dogs passing along the highway, or kept in his neighbor's premises, would probably be attracted by their instinct into the traps, and in consequence of such act his neighbor's dogs be so attracted and thereby injured, an action on the case would lie. 'What difference, ' said Lord Ellenborough, C. J., 'is there in reason between drawing the animal into the trap by means of his instinct, which he cannot resist, and putting him there by manual force?' What difference, in reason, we may observe in this case, is there between an express license to the children of the village to visit the defendant's coal mine, in the vicinity of its slack pile, and an implied license, resulting from the habit of the defendant to permit them, without objection or warning, to do so at will, for purposes of curiosity or pleasure. Referring to the ease of Townsend v. Wathen, Judge Thompson, in his work on the Law of Negligence, well says: 'It would be a barbarous rule of law that would make the owner of land liable for setting a trap thereon baited with stinking meat, so that his neighbor's dog, attracted by his natural instincts, might run into it and be killed, and which would exempt him from liability for the consequence of leaving exposed and unguarded on his land a dangerous machine, so that his neighbor's child, attracted to it, and tempted to intermeddle with it, by instincts equally strong, might thereby be killed or maimed for life.' Volume I, pp. 304, 305."
The principle is thus stated in Thompson on Neg. § 1024: "The owners and occupiers of real property are held by the law in some respects to a different standard of liability in case of injuries to children, coming upon...
