State, to Use of Alston v. Baltimore Fidelity Warehouse Co.

• Decision Date: 08 March 1939
• Docket Number: 37.
• Parties: STATE, to Use of ALSTON et al. v. BALTIMORE FIDELITY WAREHOUSE CO.
• Court: Maryland Court of Appeals

4 A.2d 739

176 Md. 341

STATE, to Use of ALSTON et al. v. BALTIMORE FIDELITY WAREHOUSE CO.

No. 37.

Court of Appeals of Maryland

March 8, 1939

Appeal from Baltimore City Court; Edwin T. Dickerson, Judge.

Action by the State, to the use of Eurie Alston, and Viola Alston his wife, parents of Marvin Alston, infant, deceased, against the Baltimore Fidelity Warehouse Company, a body corporate for the death of the infant by drowning while attempting to use a raft of the defendant. From a judgment for the defendant, plaintiffs appeal.

Affirmed.

William Saxon, of Baltimore (Albert B. Huss, of Baltimore, on the brief), for appellants.

Walter L. Clark, Roszel C. Thomsen, and Clater W. Smith, all of Baltimore, for appellee.

Argued before BOND, C.J., and OFFUTT, PARKE, SLOAN, MITCHELL JOHNSON, and DELAPLAINE, JJ.

PARKE Judge.

In the action of State of Maryland, to the use of Eurie Alston and wife, against The Baltimore Fidelity Warehouse Company, a corporation, the declaration was held bad on demurrer, and, on failure of the plaintiff to amend or plead, a judgment of non pros was entered, and the plaintiff brought this appeal.

Marvin Alston, an infant son of the parents for whose use the suit was brought, was eleven years old at the time of his death by drowning under circumstances which are asserted to make the defendant liable in an action of tort. The declaration is in one count and contains these allegations.

The defendant is the owner and operator of a warehouse which is located on the north side of York street at its intersection with Battery Avenue. These two ways are public highways of Baltimore City. Battery Avenue ends on the north side of York street at the tidal water line of the harbor. At the foot of Battery Avenue a stone wall, two feet high, is built across the highway at the water line. The defendant owned a raft, which was built of five boards and held together by narrow planks. The defendant kept the raft in the water along its property at the foot of the Avenue where it floated and was made fast by a short rope, which was tied by some device to the stone wall. The raft was alleged of tender years when standing at child of tender years when standing at the foot of Battery Avenue but this statement is subject to the necessary modification imposed by the interposition of the stone wall.

It is further alleged that to the knowledge of the defendant young children were constantly playing in the highways about this intersection, and that nevertheless the defendant permitted a dangerous, defective and unsafe raft or float to remain on the water along its property at the foot of Battery Avenue, unguarded and without notice or warnings of any kind or character to the children to warn them of the danger of the use of the raft. The further allegation is made that the infant, Marvin Alston, who is stated was mentally subnormal, while so playing, attempted to use the raft, and 'was thrown or fell or became precipitated from the said raft unto said water, where he was drowned.' The declaration then concludes with the general affirmation that the infant was in the exercise of due care and caution and that the death was the direct result of the negligence and want of care on the part of the defendant, whereby the parents have been deprived of the services, assistance and support of the said infant to their great damage.

On these allegations the plaintiff contends that a right of action arises on the theory that what is generally known as the doctrine of 'attractive nuisance' is applicable.

It will be observed that it is not alleged that the children had ever used the raft or had played with it or on it. While the infant of eleven years in stated to have been 'mentally sub-normal', it is not charged that this condition was known to the defendant nor in what way the sub-normal state affected the infant in respect of his ability to perceive and appreciate the danger of playing on a small raft afloat in the water and to refrain from going upon it. See Grube v. Baltimore, 132 Md. 355, 360, 361, 103 A. 948, L.R.A.1918E, 1036. Whatever the effect of such allegations if they had been made, their absence leaves the negligence charged to the defendant to be merely maintaining an unguarded raft in public waters in use for its private purposes without giving any notice or warning to the children playing in Battery Avenue of the danger of using the raft, which became accessible to a child after he had gone over an intervening stone wall.

The raft was afloat but fast in a harbor and there is no charge that it was carelessly or unlawfully moored. Furthermore, the defendant is not shown to have been in exclusive control of the waters where the raft was made fast nor is there any intimation how long the raft had occupied its position at the foot of Battery Avenue. Neither is there any statement that any child had ever before ventured upon the raft, so there is no basis fr even an inference that the defendant either had permitted, acquiesced in or had knowledge of any use of the raft either by the dead infant or by any other child or third party.

The raft was simply made of five boards bound together by narrow planks. It is stated to be 'dangerous, defective and unsafe', but in what respect is not mentioned, nor does it appear how or by what cause the infant was 'thrown or fell or became precipitated from the said raft' into the water. Jeter v. Schwind Quarry Co., 97 Md. 696, 698-701, 55 A. 366; Anne Arundel County Com'rs v. Carr, 111 Md. 141, 148, 149, 73 A. 668; Phelps v. Board of Com'rs of Howard County, 117 Md. 175, 178, 82 A. 1058; Frisch v. Baltimore, 156, Md. 310, 312, 144 A. 478. There is nothing to indicate the raft was a trap or its danger covert. The nature and construction of so primitive a raft or float was apparent. There was no hazard in its location, and whatever the danger of the raft it was open and obvious and attributable to the manner of the raft's use and the waters upon which it was borne.

The child was a trespasser. To reach the raft he had to leave the public street where he was at play; get up and upon the barrier interposed by the two foot stone wall, and from there either lower himself to the raft or jump to it from the top of the stone wall. Any child would have known not only that he had no right to make this venture but also that it was dangerous. The stone wall was a guard and a warning and an obstacle placed in the way to prevent unrestricted access at this point to the water.

The allegations clearly show the defendant was in the lawful use of its own property in its lawful business at the time of the death of the infant, and that the infant's death by drowning, after falling from the raft, was not caused by any breach of duty which the defendant owed to the infant at the time. Since the defendant did not know that the child was mentally sub-normal, that fact does not confer greater rights upon the child. Until the defendant has knowledge or the means of knowledge of infirmity he is justified in acting as he would be entitled to adopt on the assumption that the plaintiff is normally constituted. Again, the mere fact of an injury occurring to a young child will not raise a presumption of negligence any more than in the case of an adult. Beven on Negligence (4th ed.), pp. 178-180; Siacik, Adm'r v. Northern Cent. Ry. Co., 92 Md. 213, 221, 48 A. 149; Bannon v. Baltimore & O. R. Co., 24 Md. 108, 125 (7 yrs.); McMahon v. Northern Cent. R. Co., 39 Md. 438, 456, (5 yrs.); Baltimore & O. R. Co. v. State, to Use of Fryer, 30 Md. 47, 52 (5 yrs.).

Again, it is to be carried in mind that the defendant had not created a nuisance by the mooring of its raft which was where it had a right to be. Nor were the presence and location of the raft sufficiently near the highway to impart danger to its ordinary use, as where there is an excavation, body of water or defective gateway so close to the border of the highway as to be dangerous to travelers. Pindell v. Rubenstein, 139 Md. 567, 580, 581, 115 A. 859. In the case at bar, the street came to an end at the water and a stone wall was built across its width to bar further advance to the water of the harbor where the raft floated. Nor did the presence of the raft add to the natural danger of the open water at the end of Battery Avenue.

There is no legal duty to refrain from mooring the raft to the outer face of the wall, and without legal duty, and default, there is no possibility of legal liability. If the victim of the drowning had been an adult, who had surmounted the wall and jumped or let himself down to the raft and had fallen from it into the water, there can be no question the victim was a trespasser to whom the defendant owed no duty, and, so, no action is maintainable.

There is no special obligation of duty in the case of a young child. If there is a duty it is an obligation which runs to both adults and infants alike, although the degree of care so as adequately to perform that duty will vary according to the relative ability of infants or infirm persons to take care of themselves in contrast with ordinary persons. In short, the duty is constant but the degree of care imposed by the duty is variable in correspondence with the capability of the individual. Thus, although the duty of a municipality to persons, whether adults or infants, is to keep the highway reasonably safe for travel yet, as children are less intelligent or careful and so less able to care for themselves, the municipality is charged with providing against dangers which attached to the use of the highway by the children, even if the degree of due care had been exercised with respect to older individuals to whom it was owing.

A raft, which is floating in the...