Salladay v. Old Dominion Copper Mining Co., Civil 1073

CourtSupreme Court of Arizona
Writing for the CourtKENT, C.J.
Citation100 P. 441,12 Ariz. 124
PartiesIRA E. SALLADAY, as Father of KATIE SALLADAY, an Infant, Deceased, for the Use and Benefit of the Estate of Said Deceased Infant, Plaintiff and Appellant, v. OLD DOMINION COPPER MINING COMPANY, a Corporation, Defendant and Appellee
Docket NumberCivil 1073
Decision Date20 March 1909

100 P. 441

12 Ariz. 124

IRA E. SALLADAY, as Father of KATIE SALLADAY, an Infant, Deceased, for the Use and Benefit of the Estate of Said Deceased Infant, Plaintiff and Appellant,
v.

OLD DOMINION COPPER MINING COMPANY, a Corporation, Defendant and Appellee

Civil No. 1073

Supreme Court of Arizona

March 20, 1909


APPEAL from a judgment of the District Court of the Fifth Judicial District, in and for the County of Gila. Frederick S. Nave, Judge. Affirmed.

The facts are stated in the opinion.

Allred & Whitcher, for Appellant.

The amended complaint states facts sufficient to constitute a cause of action under our statutes. The general demurrer of the appellee admits all matters of fact alleged and all deductions and conclusions which by reasonable intendment naturally arise from the facts admitted. Phoenix Nat. Bank v. A.B. Cleveland Co., 34 N.Y.S. 498, 11 N.Y.S. 873; Marie v. Garrison, 83 N.Y. 14; Milliken v. W.U. Tel. Co., 110 N.Y. 403, 18 N.E. 251, 1 L.R.A. 281; Hyde v. Moffatt, 16 Vt. 271.

It is negligence to maintain on open, uninclosed and accessible premises, where the presence of young children may be reasonably anticipated, any machine or instrumentality which is attractive and alluring to such children and at the same time dangerous to them, without taking reasonable precautions to guard or render harmless such machine or instrumentality, or to guard the premises on which same is situated so as reasonably to prevent the intrusion of such children thereon; and for an injury to a young child attracted by and to such a machine or instrumentality, located and situated as above set forth, and inflicted upon such child by such machine or instrumentality in the absence of such precautions on the part of its proprietor, an action for damages lies. Sioux City & P.R. Co. v. Stout, 17 Wall. 657, 21 L.Ed. 745; Ferguson v. Railway Co., 77 Ga. 102; Kansas Cent. Ry. Co. v. Fitzsimmons, 22 Kan. 686, 31 Am. Rep. 203; Keffe v. Railway Co., 21 Minn. 207, 18 Am. Rep. 393, cited and approved in Union Pac. Ry. Co. v. McDonald, 152 U.S. 262, 14 S.Ct. 619, 38 L.Ed. 434, 440; Walsh v. Fitchburg R. Co., 78 Hun, 1, 28 N.Y.S. 1097; Gulf etc. Ry. Co. v. Styron, 66 Tex. 421, 1 S.W. 161; Price v. Atchison Water Co., 58 Kan. 551, 62 Am. St. Rep. 625, 50 P. 450; Franks v. Southern Cotton Oil Co., 78 S.C. 10, 58 S.E. 960, 12 L.R.A., N.S., 468.

Herring, Sorin & Ellinwood, for Appellee.

The question presented by this appeal is whether the amended complaint states facts sufficient to constitute a cause of action. A demurrer does not admit a conclusion of law stated in the pleading demurred to, unless it follows from material facts well pleaded. Abbott's Brief on Pleadings, 61, and cases cited. An allegation of defendant's duty is of no avail unless from the rest of the complaint the facts necessary to raise the duty can be collected. City of Buffalo v. Halloway, 7 N.Y. 493, 498, 57 Am. Dec. 560; 12 Ency. of Pl. & Pr. 1040; Leadville Water Co. v. City of Leadville, 22 Colo. 297, 45 P. 362, and cases cited.

It will be presumed upon demurrer that the plaintiff has stated his case as strongly as it can be stated. Smith v. Security L. & T. Co., 8 N.D. 451, 79 N.W. 981. Facts not alleged are, on demurrer to the complaint, assumed not to exist. Supply Ditch Co. v. Elliott, 10 Colo. 327, 3 Am. St. Rep. 586, 15 P. 691, 693. Nothing is assumed in favor of plaintiff which he has not averred, for the law does not presume that the plaintiff's pleadings are less strong than the facts of the case will warrant. Cruger v. Hudson River R.R. Co., 12 N.Y. 190, 201; Smith v. Buttner, 90 Cal. 95, 100, 27 P. 29.

There is no allegation that the flume was defective in its construction or out of repair. There is no allegation in the complaint which charges that the defendant made any other use of this flume than others ordinarily do throughout the country. No implied invitation exists, as a matter of law, where the owner merely makes such use of his property as others ordinarily do throughout the country. Driscoll v. Clark, 32 Mont. 172, 80 P. 1, 373, and cases cited; Dobbins v. Railway Co., 91 Tex. 60, 66 Am. St. Rep. 856, 41 S.W. 62, 38 L.R.A. 573; Williamson v. Gulf etc. Ry. Co., 40 Tex.Civ.App. 18, 88 S.W. 279.

OPINION

[12 Ariz. 126] KENT, C.J.

-- This is an action to recover damages for injuries causing the death of an infant of the age of three years. The complaint alleges, in substance: That near the house where the child resided with her parents there was an uninclosed lot, where the child and other children were permitted to go, and did go with the knowledge of the defendant, and that such uninclosed lot was a safe place. That thereafter the defendant company negligently erected thereon a certain open flume about two feet across the top, U-shaped, and about six hundred feet long, which was partly constructed and built upon high trestles, and was open, uninclosed, uncovered, exposed, and in a dangerous condition and position, all of which was known to the defendant. That the flume had a rapid fall, [12 Ariz. 127] and that the defendant negligently conveyed and caused to be run therein a rapid stream of water, which was negligently flowed and run by the defendant in the flume, at the end thereof falling therefrom a distance of fifteen feet or more. That the children of the neighborhood were accustomed and permitted to play without obstruction of any kind from the defendant upon all the open and uninclosed ground wherein said flume was situated, both before and after the erection of the flume, and that such flume was located along,...

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37 practice notes
  • Afton Electric Co. v. Harrison, 1918
    • United States
    • United States State Supreme Court of Wyoming
    • February 18, 1936
    ...almost as vital for the maintenance of prosperity as are the irrigation ditches and flumes of the Salladay case (Salladay v. Mining Co., 12 Ariz. 124, 100 P. 441), and a rule which would put a prohibitive cost on their maintenance should not be lightly adopted by the courts. On the other ha......
  • Salt River Valley Water Users' Ass'n v. Superior Court, In and For County of Maricopa, 1
    • United States
    • Court of Appeals of Arizona
    • October 21, 1993
    ...drowned in an SRP culvert. SRP claimed immunity from suit under the doctrine announced in Salladay v. Old Dominion Copper Mining Co., 12 Ariz. 124, 100 P. 441 (1909). The trial court denied SRP's first motion for summary judgment, finding that disputed issues of fact existed concerning real......
  • Salt River Valley Water Users' Association v. Compton ex rel. Compton, Civil 3105
    • United States
    • Supreme Court of Arizona
    • June 1, 1932
    ...38; United Zinc & Chemical Co. v. Britt, 258 U.S. 268, 66 L.Ed. 615, 42 S.Ct. 299, 36 A.L.R. 28; Salladay v. Old Dominion Copper Co., 12 Ariz. 124, 100 P. 441; Giannini v. Campodonico, supra. In the third place, unless the child goes on the property by reason of the temptation of the very i......
  • Loveland v. Orem City Corp., 19942
    • United States
    • Supreme Court of Utah
    • November 23, 1987
    ...at 468, 131 P. at 906. 59 Id. at 468-69, 131 P. at 907. 60 The Charvoz case relied in part on Salladay v. Old Dominion Copper Mining Co., 12 Ariz. 124, 100 P. 441 (1909). In Harris v. Buckeye Irrigation Co., 118 Ariz. 498, 578 P.2d 177 (1978) (en banc), on remand, 131 Ariz. 540, 642 P.2d 88......
  • Request a trial to view additional results
37 cases
  • Salt River Valley Water Users' Ass'n v. Superior Court, In and For County of Maricopa, No. 1
    • United States
    • Court of Appeals of Arizona
    • October 21, 1993
    ...drowned in an SRP culvert. SRP claimed immunity from suit under the doctrine announced in Salladay v. Old Dominion Copper Mining Co., 12 Ariz. 124, 100 P. 441 (1909). The trial court denied SRP's first motion for summary judgment, finding that disputed issues of fact existed concerning real......
  • Afton Electric Co. v. Harrison, 1918
    • United States
    • United States State Supreme Court of Wyoming
    • February 18, 1936
    ...almost as vital for the maintenance of prosperity as are the irrigation ditches and flumes of the Salladay case (Salladay v. Mining Co., 12 Ariz. 124, 100 P. 441), and a rule which would put a prohibitive cost on their maintenance should not be lightly adopted by the courts. On the other ha......
  • Salt River Valley Water Users' Association v. Compton ex rel. Compton, Civil 3105
    • United States
    • Supreme Court of Arizona
    • June 1, 1932
    ...38; United Zinc & Chemical Co. v. Britt, 258 U.S. 268, 66 L.Ed. 615, 42 S.Ct. 299, 36 A.L.R. 28; Salladay v. Old Dominion Copper Co., 12 Ariz. 124, 100 P. 441; Giannini v. Campodonico, supra. In the third place, unless the child goes on the property by reason of the temptation of the very i......
  • Loveland v. Orem City Corp., No. 19942
    • United States
    • Supreme Court of Utah
    • November 23, 1987
    ...at 468, 131 P. at 906. 59 Id. at 468-69, 131 P. at 907. 60 The Charvoz case relied in part on Salladay v. Old Dominion Copper Mining Co., 12 Ariz. 124, 100 P. 441 (1909). In Harris v. Buckeye Irrigation Co., 118 Ariz. 498, 578 P.2d 177 (1978) (en banc), on remand, 131 Ariz. 540, 642 P.2d 88......
  • Request a trial to view additional results

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