Troglia v. Butte Superior Mining Co.

• Citation: 270 F. 75
• Decision Date: 17 January 1921
• Docket Number: 3515.
• Parties: TROGLIA v. BUTTE SUPERIOR MINING CO.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

270 F. 75

TROGLIA v. BUTTE SUPERIOR MINING CO.

No. 3515.

United States Court of Appeals, Ninth Circuit.

January 17, 1921

The plaintiff in error brought an action for damages for the loss of his son, a lad 11 years of age, who was drowned while swimming in a pond on the premises of the defendant in error. The pond furnished water to supply a mill, and it had been made by damming a small stream. It was about 100 feet long and 75 feet wide, and varied in depth from 1 to 12 feet. It was not inclosed in any way. It was situated within 30 feet of a road, which was only occasionally traveled. The defendant in error had taken the precaution to post four or five notices around the pool, containing such warnings as 'No trespassing,' 'Private property,' '10 feet deep,' 'Keep away,' and '10 feet deep dangerous.' Boys were in the habit of coming to the pool and swimming there in the summer time. The boy who was drowned was a good swimmer for one of his age. He was 'strong and husky,' and better developed physically and mentally than most boys of his age. He was in the seventh grade at school, and of course he could read the signs, which were posted about the pool. On the day on which he was drowned, he, with a number of other boys, was playing about the pool and swimming therein two hours or longer. He was drowned while swimming across the pool, under circumstances which indicated that he was seized with cramps. The defendant in error knew that the boys were in the habit of swimming in the pool. It never protested against their using the pool for that purpose. It had in attendance in a pump house near the pool a man who was in charge of a steam pump. Upon the conclusion of the testimony, the court below directed a verdict for the defendant in error.

Walker & Walker and C. S. Wagner, all of Butte, Mont., for plaintiff in error.

Kremer Sanders & Kremer, of Butte, Mont., for defendant in error.

Before GILBERT, MORROW, and HUNT, Circuit Judges.

GILBERT Circuit Judge (after stating the facts as above).

Error is assigned to the ruling of the court below in directing a verdict for the defendant in error. The degree of care required of one who maintains on his land an artificial pool for a useful purpose is not greater than that required of one through whose land flows a natural stream, and he is bound to no special care or precaution for the protection of children who are in the habit of swimming in the same, unless there is in the pool some peculiar danger, in the nature of a hidden peril or trap for the unwary, of which he has or ought to have knowledge. A peril of that nature was disclosed in Coeur d'Alene Lumber Co. v. Thompson, 215 F. 8, 131 C.C.A. 316, L.R.A. 1915A, 731, where a child of 7 years of age, while wading in a small pool several feet across and apparently a few inches deep, stepped into a well, the presence of which was concealed by floating sawdust and discolored water. In that case we held that the defendant's negligence and the plaintiff's contributory negligence were properly submitted to the jury. A similar case is United Zinc & Chemical Co. v. Britt (C.C.A.) 264 F. 785. In 20 R.C.L. 96, it is said:

'Ponds, pools, lakes, streams, and other waters embody perils that are deemed to be obvious to children of the tenderest years, and as a general proposition no liability attaches to the proprietor by reason of death resulting therefrom to children who have come upon the land to bathe, skate, or play. * * * Accordingly, a right of recovery has been denied in the case of children 11, 10, 9, 8, 7, 6, and even 5 years of age. Although a property owner may know of the habit of children to visit waters upon his premises, he is as a rule under no

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