State v. Longeley

• Decision Date: 14 January 1932
• Docket Number: 43,44.
• Citation: 158 A. 6,161 Md. 563
• Parties: STATE, TO USE OF POTTER ET AL., v. LONGELEY ET AL. (TWO CASES).
• Court: Maryland Court of Appeals

158 A. 6

161 Md. 563

STATE, TO USE OF POTTER ET AL., v. LONGELEY ET AL. (TWO CASES).

Nos. 43, 44.

Court of Appeals of Maryland

January 14, 1932

Appeals from Circuit Court, Baltimore County; C. Gus Grason, Judge.

Separate actions by State, to the use of Wilbur E. Potter and Virginia I. Potter, parents of John Wilbur Potter, deceased, against William M. Longeley and others. From judgments in favor of defendants on demurrers, plaintiff appeals.

Affirmed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT PARKE, and SLOAN, JJ.

John B Gontrum and William H. Maynard, both of Baltimore (Edwin K Gontrum, of Baltimore, on the brief), for appellant.

Stevenson A. Williams, of Bel Air, and William H. Lawrence, of Baltimore (Fred R. Williams, of Bel Air, on the brief), for appellees.

ADKINS J.

These appeals are from judgments in favor of defendants on demurrers, the plaintiffs refusing to amend their declarations.

The two records are substantially identical. The explanation seems to be that two suits were necessary because two of defendants reside in Harford county and one in Baltimore city.

The declarations contain three counts, the first of which alleges that defendants on September 5, 1929, owned, kept, and maintained a large quarry, which had been abandoned and was not actively operated at the time, near Biddison lane and Belair road in the city of Baltimore, in a thickly built up section of the city, with dwelling houses almost surrounding it, and with city streets, including the Belair road, a heavily traveled thoroughfare, nearby, and within a short distance of two schools; that said quarry had almost perpendicular walls of great height, and that the defendants permitted the bottom of the quarry to become covered with water of considerable depth, and, with the implied invitation to said quarry and with direct knowledge that young children were constantly playing in and about said quarry, permitted the said premises to become and remain as an attractive nuisance to children of tender and immature years, and that on the said date the defendants negligently, carelessly, and recklessly failed to properly inclose the premises by a fence, and, with the knowledge that young children were constantly playing in and about said quarry, negligently and carelessly permitted said premises to remain unguarded and without notice or other warnings to children so using said premises of the dangerous, unsafe, and improper condition thereof; that the defendants negligently placed and permitted a large cable to be and remain as a means of ingress and egress to and from said quarry, permitted water to accumulate on the bottom thereof of considerable depth, permitted a dangerous, defective, and unsafe raft or float to remain on the waters; that the 12 year old infant son of plaintiffs entered in and upon the premises through a defective fence and by means of said cable descended to the bottom of the quarry and attempted to use the dangerous, defective, and unsafe raft, and by reason of all the aforesaid negligence of defendants was thrown or fell from said raft into the water, where he was drowned, all of this while the said infant was using due care and caution, whereby the plaintiffs, his parents, have been deprived of his services; that the injuries which resulted in the death of said infant were directly caused by the negligence of defendants without negligence or want of care on the part of said infant directly thereto contributing.

The second count is like the first, with the additional allegation that defendants failed to properly inclose said premises as required by Ordinance No. 231, codified as sections 125 to 128, inclusive, of article 32 of the Baltimore City Code of 1927, which requires each and every owner of abandoned or not actively operated quarries within the city limits to inclose by a fence, not less than six feet in heighth, constructed in such manner and of such materials as will prevent any person from entering upon said quarry.

The third count is like the second, except that it omits the allegations that defendants permitted the premises to become and remain as an attractive nuisance to children, and alleges that, in violating said ordinance in failing to completely fence in said quarry, leaving a space of fifty feet or more, without an adequate fence, the defendants permitted and encouraged infant children, including plaintiffs' deceased son, to gain access to said quarry, and that said violation of the ordinance was the direct and proximate cause of the accident.

The doctrine of attractive nuisance has never been applied in this state, although this court has had before it at least three appealing cases in which it was strongly urged that the doctrine was applicable. Grube v. M. & C. C. of Baltimore, 132 Md. 355, 103 A. 948, 951, L. R. A. 1918E, 1036; M. & C. C. of Baltimore v. De Palma, 137 Md. 179, 112 A. 277, 279; State, use of Lease, v. Bealmear, 149 Md. 10, 130 A. 66. It was said in the Grube Case, supra, that it might be justly applied in some cases. But as it was not applied in that case it is safe to say that it would not be applied here under ordinary circumstances. There a pole was erected in a schoolyard by the defendant for the purpose of carrying electric current to the schoolhouse; it was erected about a foot from the fence, and from the top of the fence the boy, about 10 years old, was able to reach spikes driven in the pole, and intended for the use of employees, and thus to climb to the top, where he came in contact with a wire and was seriously injured. The schoolyard was used as a playground, and the boys frequently climbed on the pole. In the opinion written by Chief Judge Boyd it was said: "Children should receive all reasonable protection from the courts, but however much such an injury as this boy sustained is to be regretted, it does not justify mulcting innocent people or corporations in damages for injuries sustained by a boy over 10 years of age who had no right to do what he did do."

It was further said that "the decision in Stansfield v. C. & P. Tel. Co., 123 Md. 120, 91 A. 149, 52 L. R. A. (N S.) 1170, conclusively establishes the fact that there can be no liability in this case, unless there must be some exception to the general rule there clearly announced, by reason of...