Starling v. Mills

• Citation: 84 S.E. 388,168 N.C. 229
• Decision Date: 03 March 1915
• Docket Number: (No. 149.)
• Parties: STARLING. v. SELMA COTTON MILLS.
• Court: United States State Supreme Court of North Carolina

84 S.E. 388

168 N.C. 229

STARLING.

v.SELMA COTTON MILLS.

(No. 149.)

Supreme Court of North Carolina.

March 3, 1915.

Appeal from Superior Court, Chatham County; Connor, Judge.

Action by W. C. Starling, administrator, against the Selma Cotton Mills. Judgment of nonsuit, and plaintiff appeals. Reversed.

Manning & Kitchin, of Raleigh, for appellant.

A. Jones & Son and Douglass & Douglass, all of Raleigh, for appellee.

CLARK, C. J. This is an appeal from a judgment of nonsuit. The plaintiff's intestate, a bright little boy five years of age, was drowned in a reservoir on defendant's premises Saturday afternoon, February 20, 1909. The reservoir was about 50 feet around, with a brick wall around it. It was 2 or 3 inches from the top of the brick wall to the water on the inside. Rev. Mr. Morris testified that there had been a fence around the reservoir, and that there was still " * * * a piece of one there at the time of the drowning of the little boy, Alma Starling." He testified that the fence was put up with post-oak posts skinned and the bark taken off, and slatted up between the posts which were 8 feet apart, with slats fastened with small nails. These slats were 3 inches apart at the bottom, and wider apart going up, till they were 8 inches apart at the top. The fence was 3 1/2 or 4 feet high. This reservoir was close to the mill and near the tenement houses of the operatives, and their small children played around it almost every day, rolling their hoops up and down the platform on the side of the reservoir. The father of Alma Starling, who was a mill operative, lived 210 feet from the reservoir. The witness testified further:

"The fence around the reservoir was decayed and rotted and falling down. Some of it had fallen off. There were several places around the reservoir where the slats had fallen off, mostly on the side of the street where they had hauled coal. The slats had fallen off at the bottom. There was one hole in the fence I could crawl through. That hole was something like 10 feet from the place where the body was found. There were three places where the fence had rotted down. I had talked with Mr. Rose, the superintendent, about the condition of the fence, and heard him speak about it. It had been in that condition for some time. Pretty soon after this drowning I got orders to put the fence up. The reservoir was about 15 feet from the mill. There was a passageway between the reservoir and the mill. There is a sloping earth bank on the outside that leads up to the top of the wall on which the fence was built."

The water on the inside he said came within 2 or 3 inches of the top of this wall. The posts were 8 feet apart, and the wall was 16 or 18 inches broad at the top. The slope of the wall on the outside was gradual.

There is also evidence that small children were playing about the reservoir and all around it every day. The reservoir was 25 or 30 steps from the front end of the mill. Small children of all sizes played around the reservoir, where there was a grassy place and trees for the children to play.

One of the little companions of the deceased boy testified that Alma went through the hole in the fence to get some water to drink in the tin cup, and fell in and was drowned; that he easily went through the hole near the bottom of the fence, which was 12 to 18 inches wide.

There were several witnesses who testified to the same effect, that the reservoir, which was 7 or 8 feet deep, was surrounded by a fence which had been suffered to become dilapidated, with many holes through it, and that children five or six years old and under were in the habit of playing around the reservoir, and that the management of the mill knew of it.

It...