Saxton v. Plum Orchards

• Decision Date: 01 March 1948
• Docket Number: 18639.
• Citation: 34 So.2d 423
• Court: Court of Appeal of Louisiana — District of US
• Parties: SAXTON et ux. v. PLUM ORCHARDS, Inc.

34 So.2d 423

SAXTON et ux. v. PLUM ORCHARDS, Inc.

No. 18639.

Court of Appeal of Louisiana, Orleans.

March 1, 1948

Rehearing Denied April 12, 1948.

Writ of Certiorari Granted June 1, 1948.

Porteous & Johnson, of New Orleans, for appellants.

John F. Stafford and Sidney J. Parlongue both of New Orleans, for appellee.

JANVIER Judge.

Plaintiffs the father and mother of a four year old daughter, who was drowned in a pond on land owned by the defendant corporation brought this suit for damages for the loss of their daughter charging that it was negligence for the said corporation to allow the pond to remain in close proximity to the residence of plaintiffs since it was of such a nature that it was attractive to children and thus constituted a peril to all young persons who, by its attractiveness, might be lured into the danger which always results when very young persons play in or near such bodies of water. In other words, the cause of action, if there is one, is based on what is familiarly known as the doctrine of the 'turntable cases,' Sioux City & P. R. Co. v. Stout., 17 Wall. 657, 21 L.Ed. 745, which doctrine is founded on the theory that it is negligence to maintain in any place where children 'have a right and are likely to be' anything which is dangerous to such children, if it is of such a nature as to be attractive to them to such an extent 'that the instincts of children would prompt them to meddle, or play with or in it.' Fincher v. Chicago, Rock Island & Pacific Railway Company, 143 La. 164, 78 So. 433, 434.

In their original petition plaintiffs alleged that they had leased the house in which they lived from the defendant corporation which was the developer of the subdivision in which the said house was located, and that the said defendant corporation, in developing the subdivision, had caused to be dug the pond in which their daughter was later drowned, and that the said pond was located about one hundred and fifty feet from their said residence.

To this petition defendant filed an exception of vagueness apparently based on the theory that the pond was not sufficiently described to permit of a determination of the question of whether it was or was not of such a nature as to constitute an 'attractive nuisance.'

When the exception of vagueness was filed plaintiffs filed a supplemental petition in which they alleged that the pond was about one hundred and eighty-eight feet in length, twenty-one to twenty-nine feet wide, from five to nine feet deep and that 'floating thereon were a great many pieces of old logs, wood, board, timber and debris which to a child of the tender age of petitioners child would or may give the impression that the place, ditch, large hole or excavation was filled particularly when the wind would blow that which was floating on the water into one portion or corner all to the defendants knowledge.' They further alleged that 'the body of your petitioners' child was found among that which was floating on the water. Petitioners' child of tender age evidently believed she could walk where she was drowned.'

When this supplemental petition was filed defendant filed an exception of no cause of action contending that the mere maintenance of such a pond does not, in itself, constitute negligence, and that such a body of water cannot be characterized as an attractive nuisance, unless it is alleged and proven that there is something unusual about it which would cause children to be attracted to it.

This exception was referred to the merits and defendant filed an answer admitting the ownership and maintenance of the pond and admitting that it had leased to plaintiffs the house in which they lived. Defendant, after denying that the death of the little girl had resulted from any negligence on its part, averred that the plaintiffs knew of the existence of the pond, and that the said death was caused by the failure of plaintiffs to properly attend and guard their minor child, that such act on the part of the plaintiffs should be a bar to their recovery.

There was judgment below dismissing the suit and plaintiffs have appealed.

The facts, except in one particular, are not in dispute. The house in which the plaintiffs lived belonged to the defendant corporation and had been leased by it to plaintiffs, and the pond in which the little girl was drowned was on land belonging to defendant and defendant had caused it to be dug to assist in the drainage of that particular part of the property and for the further purpose of providing earth which was use in filling other low portions of the subdivision. The pond was in the rear of the house which was across the street from that in which plaintiffs lived and, at its nearest point, was approximately one hundred and fifty feet from the residence of plaintiffs. It was about one hundred and seventy-five to two hundred feet in length, had an extreme width of twenty-one to thirty feet and a depth of from four to eight or nine feet.

The only dispute over the facts arises from the contention of plaintiffs that floating in the pond were large pieces of timber which, according to plaintiffs, had the effect of leading children to believe that they might be used as rafts, and which also had the effect, so plaintiffs say, of constituting a trap leading children to believe that they might step on them with safety.

The evidence as to the presence of these pieces of timber or logs is conflicting, but we think there is a substantial preponderance in favor of the contention of the defendant that in the pond there was only the usual debris...