Thompson v. Alexander City Cotton Mills Co.

• Decision Date: 17 December 1914
• Docket Number: 549
• Parties: THOMPSON v. ALEXANDER CITY COTTON MILLS CO.
• Court: Alabama Supreme Court

67 So. 407

190 Ala. 184

THOMPSON v. ALEXANDER CITY COTTON MILLS CO.

No. 549

Supreme Court of Alabama

December 17, 1914

Rehearing Denied Jan. 21, 1915

Appeal from Circuit Court, Tallapoosa County; S.L. Brewer, Judge.

Action by Mrs. L.H. Thompson, administratrix, etc., against the Alexander City Cotton Mills Company. From a judgment for defendant, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed.

In an action for death of a child from falling into a drain, into which the hot waters from a mill were discharged, an instruction that the necessity for having the blow-off pipe in the operation of the mill was not an excuse for negligence held properly refused as abstract.

The action is to recover damages for the wrongful death of plaintiff's child, a boy eight years of age. The boy was killed by falling into a ditch or drain that at the time contained hot water. The ditch was used by the defendant for carrying off the hot water from its boilers. During a long-continued use for this purpose the water had washed out holes in the bottom of the ditch, into which the hot water would collect when the boilers were washed out. There was a discharge pipe from the boilers, which emptied the water into this ditch, through which it flowed off from the mill. This ditch was estimated to be from 1 to 3 feet wide, and from 1 to 2 1/2 feet deep; and the water which collected in these holes, or pools, as they are sometimes called, was estimated to be from 6 to 18 inches deep, when the water was discharged from the boilers, through the discharge pipe, into this ditch. This hot water was thus discharged about once a day usually from 1 to 3 o'clock in the afternoon, when the boilers were cleaned. At the head of this ditch into which water was discharged, one side or bank of the ditch had grown up in briars, which hung over the ditch, and on the other side slag or cinders, from the boiler, had been dumped out thus forming heaps or dump piles, making the head of the ditch not easily accessible by pedestrians. It could be approached, however, as was done by the deceased, by coming up the ditch and thus avoiding the barriers and other obstructions.

This ditch, or drain, as it is more accurately described, some 25 or 30 feet from its head, crossed a road which was used by the defendant and its employés and others having occasion to use the defendant's premises. The defendant' s premises, on which the ditch or drain was located, formed a hollow square, two sides of which were dotted with tenement houses occupied by the defendant's employés, one of whom was the father of the unfortunate boy. The other two sides of the square were occupied by the cotton mill buildings, machinery, etc.,. of the defendant. Within this square, near the center, was a water tank into which cold water was pumped, and from which it was used by defendant and its employés for domestic purposes, and from it had formed a small drain through which overflow and waste water, flowing to a point several yards below, united with the hot water mentioned as flowing in the other ditch or drain. The space around this tank or standpipe was open, as was most of the hollow square above described, which covered two or three acres, and in this square the children of the employés, including the unfortunate boy, were accustomed to play. While the evidence showed that children habitually played in this square and around the water tank, it did not show without dispute that they habitually played around the head of this ditch or drain into which the hot water was discharged from the drain, or blow-off pipe. The evidence all showed that the hot water was difficult of approach, and was so obscured and shut off from view that the existence of such holes or pools was not known by those who lived near it, and who constantly used water from the cold water tank or standpipe.

The evidence of the father and the mother of the unfortunate child shows that it was a secluded spot, and anything but attractive to either children or grown persons. From the very nature of things, it could not have been at all dangerous, except for 20 or 30 minutes, at most, during each day. In fact, it appears that on this occasion neither the deceased nor his companions knew of the presence of the hot water. They were engaged in boyish sport, trying to see who could throw the most stones into the end of the exhaust pipe, when the deceased slipped and fell into one of the pools or holes of hot water.

The evidence, therefore, wholly fails to show that they were attracted there by the pools or holes of hot water, but rather shows that it was the end of this pipe, which formed the target at which they were throwing stones, that attracted them. It would have been just as attractive if it had discharged cold water or had discharged none at all.

This defendant, so far as this evidence shows, would have been just as liable for an injury, had there been no water in the ditch, and the boy had broken his neck, leg, or arm, in falling, instead of being scalded, as he was. That is to say, it was not the hot water which attracted him to the spot where he received the injury.

Harsh, Beddow & Fitts, of Birmingham, and P.O. Stevens, of Alexander City, for appellant.

George A. Sorrell, of Alexander City, for appellee.

MAYFIELD J.

The question in this case which underlies all others is this: Did the defendant owe a duty to its employés or their children, using its grounds, to fence or otherwise safeguard the ditch or drain which carried off the hot water from its boilers, so as to prevent accidents like the one which befell plaintiff's son in this case? It is not disputed that the discharge or blow-off pipe was a necessity in defendant's lawful business, nor that hot water of necessity had to escape therefrom and be carried off; the acute question is: Should the ditch or drain in which the holes or pools had formed, and into which the deceased fell, have been fenced or otherwise safeguarded, so as to prevent or render less probable accidents like the one in question to the children of its employés?

We think it is safe to say that the alleged dangerous agency here complained of cannot be truly classed as an "attractive nuisance." Nor can the deceased be classed as a trespasser. His relation to the premises upon which he was injured was that of a licensee. The liability of the defendant, in this case, if such there be, must depend upon the doctrine of the turntable cases. This doctrine was first announced in the United States in the familiar case of Sioux City R.R. Co. v. Stout, 17 Wall. (U.S.) 657, 21 L.Ed. 745, and was subsequently followed by the same court in the case of Union Pacific R.R. Co. v. McDonald, 152 U.S. 262, 14 Sup.Ct. 619, 38 L.Ed. 434. An examination of Rose's notes to the report of these cases shows that the state courts are divided in opinion as to the correctness of the doctrine announced in Stout's Case. This court, however, is committed to the correctness of the doctrine, and has followed it in a turntable case--that of Alabama Great Southern Railroad Co. v. Crocker, 131 Ala. 585, 31 South 561.

While this is not a turntable case, but a "pool," "pond," or "hole of water" case, yet the liability in the two classes of cases largely, but not entirely, depends upon the same doctrine. A number of this last class of cases will be found reported in the various state reports; and here, as in the turntable cases, there is a lack of harmony in the decisions. There is a very valuable note in 7 Ann.Cas. p. 200 et seq., appended to the report of the case of Sullivan v. Huidekoper. In most of the reported cases, the injured child was a trespasser, and not a licensee,

as in this case. In all the cases in which defendants have been held liable under...