Washabaugh v. Northern Va. Const. Co

• Decision Date: 14 June 1948
• Citation: 48 S.E.2d 276,187 Va. 767
• Court: Virginia Supreme Court
• Parties: WASHABAUGH. v. NORTHERN VIRGINIA CONST. CO.

48 S.E.2d 276

187 Va. 767

WASHABAUGH.

v.NORTHERN VIRGINIA CONST. CO.

Supreme Court of Appeals of Virginia.

June 14, 1948.

Error to Circuit Court, Fairfax County; Paul E. Brown, Judge.

Action by George G. Washabaugh, administrator of estate of David G. Washabaugh, deceased, against Northern Virginia Construction Company, to recover for alleged wrongful death of plaintiff's decedent. To review judgment sustaining demurrer to his notice of motion in which he demanded compensation, the plaintiff brings error.

Affirmed.

Before HUDGINS, C. J., and EGGLESTON, SPRATLEY, BUCHANAN, STAPLES, and MILLER, JJ.

John A. K. Donovan and John G. Turn-bull, both of Falls Church, for plaintiff in error.

Frank L. Ball, of Arlington, for defendant in error.

HUDGINS, Chief Justice.

The administrator of David G. Washa-baugh seeks by this writ of error to reverse the judgment of the trial court sustaining the demurrer of the Northern Virginia Construction Company, the defendant, to his notice of motion in which he demands compensation for the wrongful death of his decedent.

The material facts alleged are that the defendant is engaged in quarrying rock and gravel on its land in Fairfax county. In the conduct of this enterprise defendant has opened and continues to keep open a large pit from which rock and gravel have been removed. Around the pit the land gradually slopes toward the outer rim from which shelves project inward. From the inner edges of these shelves the walls of the pit drop perpendicularly to a depth of 25 feet. Water rising from the bottom and seeping in from the sides has filled the deep holes and has covered the bottom of the shelves so that the general appearance of the pit is that of a large pond of water which, at times, is so muddied from the surface water that it is impossible to distinguish by sight the shallow from the deep water.

Someone, not the defendant, had built a raft of boards or logs and left it in the pit.

On June 12, 1946, plaintiff's decedent, a boy nine years old, with his playmates, was playing, as other children of the neighborhood with knowledge of defendant had done before, in the water in the pit. Decedent either walked or paddled to the raft, and, while playing on or around it, fell into the deep water and drowned.

Plaintiff further alleges that after defendant ascertained that children were using the water in the pit as a wading or swimming hole, it became a duty imposed upon it by law to erect a fence or other barricade around the pit and the private road leading from the highway to it, and to post appropriate warning signs, and that the failure to perform either of these duties was negligence, which was the proximate cause of decedent's death. To this notice of motion 'defendant filed a demurrer in which the following grounds are stated:

"1. The motion for judgment filed against the defendant herein is not sufficient in law.

"2. The said motion for judgment does not state any legal duty on the part of this defendant towards the plaintiff's intestate.

"3. The said motion for judgment does not allege any act which constitutes a breach of any legal duty owing by this defendant to the plaintiff's intestate.

"4. The acts and things alleged by the plaintiff herein, even if taken as true, do not constitute the basis of any legal claim against this defendant."

The precise question presented is whether an artificial pond of water created in the operation of an ordinary business enterprise is such a dangerous instrumentality that the law imposes upon the owner the duty to take proper precautions to prevent children from using the same.

The doctrine of "attractive nuisance" or the doctrine of the "turntable cases" has been repudiated in this jurisdiction. Walker v. Potomac, F. & P. R. Co., 105 Va. 226, 53 S.E. 113, 4 L.R.A..N.S., 80, 115 Am.St.Rep. 871, 8 Ann.Cas. 862; Morris v. Peyton, 148 Va. 812, 139 S.E. 500; Filer v. McNair, 158 Va. 88, 163 S.E. 335.

On the other hand, we have held that it was negligence for the owners or occupiers of land to leave on their premises, easily accessible to children of tender years, an instrument, machine, or appliance which contains hidden, concealed, or latent danger when handled by one unfamiliar with its use.

In Haywood v. South Hill Mfg. Co., 142 Va. 761, 128 S.E. 362, the owner was held negligent for leaving a highly charged uninsulated electric wire within the arm's length of a child who was passing along the sidewalk. In Daugherty v. Hippchen, 175 Va. 62, 7 S.E.2d 119, 121, Justice Gregory, speaking for the court, said: "Explosives are equally deadly as electric current. Both should be guarded and controlled withutmost care and caution, and especially is this true when it is known or should be known that children of tender years are accustomed to play at or near 'these dangerous instrumentalities and are likely to gain access to them." In Adams v. Virginian Gasoline Co., 109 W.Va. 631, 156 S.E. 63, 66, it was held that gasoline is "a dangerous substance" and that the owners "must exercise reasonable care to avoid injuring trespassing child, whose presence is known or reasonably anticipated." See Gregory v. Lehigh Portland Cement Co., 157 Va. 545, 162 S.E. 881.

In order for the doctrine to apply, the danger of the instrumentality must not only be hidden or latent, but the instrumentality must be easily accessible to children and in a location where it is known that children frequently gather.

We held in Beacher v. McFarland, 183 Va. 1, 31 S.E.2d 279, that a barbed wire fence contained no hidden or latent danger and that the owner was not responsible for the injuries inflicted on a child in running against or falling from such a fence. The facts in Dennis v. Odend'Hal-Monks Corp., 182 Va. 77, 28 S.E.2d 4, 5, were that an employee of defendant, while working on the roof of a building in Norfolk, parked his automobile...