Salladay v. Old Dominion Copper Mining Co.

• Citation: 100 P. 441,12 Ariz. 124
• Decision Date: 20 March 1909
• Docket Number: Civil 1073
• Parties: 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
• Court: Arizona Supreme Court

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

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, 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, over, and adjoining said ground in immediate proximity to the residence of the said child. That by reason of the rapid stream of water run therein and the rapid fall of the flume and the height of the flume at the end thereof, and by reason of the uncovered and unguarded condition thereof, said flume was an instrumentality extremely dangerous to young children engaged in play upon said open and uninclosed ground near the flume, and was calculated and capable of inflicting upon such children grievous bodily harm. That by reason of the rapidly moving stream of water constantly flowing in said open flume, said flume was an object attractive and enticing to children, and constituted an allurement, inducement, and invitation to children to frequent said flume and the open ground and banks along the same for the purpose of amusement and play, and that the children of the vicinity were in the habit of frequenting the said flume and the banks and open ground along the same for the purpose of amusement and play. That said flume, by reason of the stream of water flowing therein and the uninclosed and exposed condition of the flume and its location, was then and there a dangerous instrumentality likely to inflict injury or death on young children attracted thereto or falling therein, all of which the defendant knew. That it was the duty of the defendant to maintain about and upon said flume a proper inclosure covering, or other safeguard to prevent children playing in such open ground and along the banks of such gulch or flume from falling or being drawn into the water flowed therein, and to keep them from danger of injury or death by falling into said open and unguarded flume; but that the defendant, wholly neglecting its duty, neglected and carelessly failed to provide such inclosure, cover, or guard, and permitted said flume to remain and be uninclosed, unguarded, and open, so that children could pass freely onto and across said open and uninclosed ground to said flume as they had theretofore been accustomed to do, and that children, allured, enticed, and invited to said flume by reason of the attraction of said running stream of water, might come at said flume without obstruction or hindrance of any kind. That upon a certain specified day the infant Katie Salladay, being then of the age of three years and nine months, being then and there lawfully upon said open and uninclosed ground near said open and uncovered flume engaged in play, and being then and...