Vincent v. Barnhill

• Decision Date: 22 March 1948
• Docket Number: 36726.
• Citation: 203 Miss. 740,34 So.2d 363
• Court: Mississippi Supreme Court
• Parties: VINCENT et al. v. BARNHILL et al.

34 So.2d 363

203 Miss. 740

VINCENT et al. v. BARNHILL et al.

No. 36726.

Supreme Court of Mississippi

March 22, 1948

Snow & Covington, of Meridian, for appellants.

Gillespie, Minniece & Nettles, of Meridian for appellees.

L. A. SMITH, Sr., Justice.

An action was brought in the Circuit Court of Lauderdale County by the heirs of Billie Mitchell Barnhill, demanding damages for his death by drowning in an old vat which had been built in connection with a former bleaching plant, long since out of business, and its buildings torn down. The location was in the outskirts of Meridian, in a field of approximately six acres. On a different part of this field, children were accustomed frequently to play baseball. Occasionally some diverted themselves around this vat, in which was impounded rain and surface water.

Certain concrete vats, including the one in this lawsuit, and concrete foundations for boilers and engines, relics of the old factory, were on the lot when appellants bought it a few years ago, and had been there for a long period of time prior thereto. They were retained by appellants as a possible incentive to potential purchasers of the premises for factory purposes. The vats were all visible from a highway skirting the property. They were not hidden, or secret, and none could be classed as a concealed trap.

Billie Mitchell Barnhill was a small, intelligent boy of approximately seven years of age, when on the afternoon of March 27, 1947, he was discovered drowned in the vat here involved. How he came to be there, no one knew. He was alone and had been repeatedly warned both by his mother and his older brother to stay away from the vats, including the one at issue here. In addition, he was known to be afraid of water, and would not wade beyond very shallow depths, even with others present. He had never been known to enter this pool. It does not appear that a path led by the place on his way home, and even if there had been, appellants had never consented to the entry of, or passage through, or playing in these premises by him or other children. He was a trespasser there.

The vat in this case was about 35 feet long, 8 feet wide and 5 feet in depth. The concrete sides all around were only a few inches above the ground and that the vat contained water up to within a foot of the top of the sides could be seen for a distance of 50 feet away or more. As stated, there was nothing concealed about the vat, and it was utterly without any features of complication.

In many of these cases the Courts have noticed that some boys every year lose their lives by drowning in ponds and the like, but that the number so losing their lives is insignificant in comparison with the number of those who visit and play around or in such places. This is to say that while such drownings are a possibility they are not within the field of probability or likelihood, and our Court is committed to the rule that no man is to be convicted of negligence when or because he has failed to guard against that which is merely possible as distinguished from that which is likely to occur or is probable, as sometimes phrased. Here, this vat had existed for many years before appellants bought the land, and nothing in this record presents any evidence of prior trouble there, and this condition existed on the day of the tragedy as it had, apparently without similar mishap, during all the long previous time of existence. This subject was fully discussed in Mauney v. Gulf Refining Co., 193 Miss. 421, 8 So.2d 249, 9 So.2d 780, and it is necessary only to apply the principle reviewed in that case to hold that there is no liability in this case.

At the common-law, there would be no liability under the circumstances of this case, and although the trespasser was a child, he was subject to the rule governing trespasses on land, the same as an adult. Liability, however, was sought to be fixed here by the application of the attractive nuisance doctrine, and by the so-called playground rule, both exceptions to the general rule. The latter rule is announced by the Pennsylvania Court in Kay v. Pennsylvania Railroad Company, 65 Pa. 269, 3 Am.Rep. 628. However, the Pennsylvania Court in Thompson v. Baltimore & Ohio R. Co., 218 Pa. 444, 451, 67 A. 768, 770, 19 L.R.A.,N.S., 1162, 120 Am.St.Rep. 897, 11 Ann.Cas. 894, speaking of the attractive nuisance exception, said: 'The doctrine is a sweeping innovation on the settled common-law rule that a landowner is not liable for the condition of his premises to one who enters them without permission. We are of opinion that it is not sound in principle, and that it cannot be sustained.' We have no decisions in this jurisdiction on the so-called playground rule, but we do have on the doctrine of attractive nuisance. We have adopted it in our jurisprudence along the line of the turntable cases. But, about it we have said: 'This doctrine has been repudiated by a majority of the courts, and 'needs very careful statement not to make an unjust and impracticable requirement.' United Zinc & Chemical Co. v. Britt, 258 U.S. 268, 42 S.Ct. 299, 66 L.Ed. 615, 36 A.L.R. 28. The tendency of the courts recognizing it is to limit, instead of enlarge, the scope thereof.' Lucas v. Hammond, 150 Miss. 369, 116 So. 536, 60 A.L.R. 1427.

This attitude of our Court is in harmonly with the following observation in 45 C.J., Sec. 188(19), Negligence, [203 Miss 748] p. 784: 'Even in jurisdictions where the attractive nuisance doctrine has been accepted, the tendency is to limit rather than to extend it, and the doctrine is said to be one which should be applied very cautiously and only when the facts come strictly and fully within the rule.' Those states which have rejected it, or refused to apply it, have acted on the ground that 'it has its foundation on sympathy rather than on any sound principle of law, impairs property rights, imposes on every member of the community a higher duty for the protection of children than is imposed on their parents, and if carried to its logical conclusion would...