Watts v. Murray

Decision Date23 November 1949
Docket NumberNo. 7421,7421
Citation43 So.2d 303
PartiesWATTS et ux. v. MURRAY.
CourtCourt of Appeal of Louisiana — District of US

Kent Breard, Monroe, for appellants. atDale, Richardson & Dale, Vidalia, for appellee.

HARDY, Judge.

This is a tort action in which plaintiffs, husband and wife, seek the recovery of damages for the death of their sixteen-month old son who was accidentally drowned in a pool of water located on property belonging to defendant.

An exception of no cause and no right of action was filed on behalf of defendant, which was maintained by the District Judge, pursuant to which ruling plaintiffs' suit was dismissed. From the judgment plaintiffs bring this appeal.

Unfortunately, we do not find it practicable to discuss the issues raised by quoting extracts from plaintiffs' petition inasmuch as the consideration of almost every paragraph of the document is essential to a determination of the matter. For this reason we find it necessary and desirable to quote the entire petition as follows:

'The petition of Mack Watts and Emma Lishman Watts, residents of Natchez, Mississippi, with respect, respresents:----

(1)

'That George Murray, a resident of the Parish of Concordia, State of Louisiana is justly and truly indebted unto your petitioners in the full sum of Ten Thousand ($10,000.00) Dollars, together with legal interest from date of judicial demand until paid, for this, to-wit:

(2)

'That George Murray, on December 3, 1946, was and is now the owner of the Vidalia Plantation located in the Parish of Concordia, State of Louisiana; that at that time Sam Williams, a negro, was employed by defendant, by the week, and was furnished by George Murray with a house located on Vidalia Plantation, which, house was also occupied by Sam Williams' daughter, Rosalie Huing; that there is a large yard around the house and in the northwest corner thereof there is a cement vat, built flush to the ground, being about eighteen feet long, three feet wide, and four feet deep, with a graded walk into same from the south end of the vat and in which at all times water collected, filling same and forming a pond.

(3)

'That there is a gravel road which runs east and west from the public highway down to the property line of the Vidalia Plantation and which ends just at the edge of the above described yard surrounding the house occupied by Sam Williams; that along this gravel road are several houses occupied by white and colored families; that plaintiffs and their family lived in the last house on the south side at the east end of this road, (said house hereinafter referred to as the Watts house), the Watts family having moved there on or about June 1, 1946, and which was occupied by them on December 3, 1946, and until some time in 1947, when they moved to Natchez, Mississippi; that plaintiffs had three children, namely: Patsy Ruth, born July 31, 1938; Johnnie Mack, born November 9, 1943, and Jimmy Lee, born July 23, 1945; all of whom were living in the Watts houses.

(4)

'That plaintiffs, after they moved into the Watts house, became very friendly with Rosalie Huing and Sam Williams; that Sam Williams had a garden and raised chickens and plaintiffs would go over to their house to buy vegetables and eggs from them regularly; that Rosa Huing and Sam Williams became very friendly with the Watts' three children, and particularly Johnny Mack Watts, who spent a lot of time with Rosalie, sitting on her porch and playing around her house and in her yard; that the youngest child, Jimmie Lee, would be taken by his parents over to Sam Williams' house when the Watts went over to buy vegetables and eggs; that this friendly relationship existed the entire time that the plaintiffs lived in the nearby Watts house.

(5)

'That on these frequent visits to Sam Williams' house on Vidalia Plantation plaintiffs would use a path running from the end of the gravel road to the front of the Williams' house; that this path passed within about ten feet of the south end of the above described pond of water located thereon, which pond was in plain view of anyone using said path; that on the numerous occasions when plaintiffs would take Jimmie Lee Watts with them over to Sam Williams' house, using said path, Jimmie Lee could see and did see the said pond of water, which attacted him thereto.

(6)

'That on the day of December 3, 1946, at or about 1:00 P.M., o'clock, Emma Lishman Watts was in her kitchen preparing dinner and Jimmie Lee Watts was playing in the yard by the kitchen window in sight of his mother; that unknown to his mother Jimmie Lee left the vicinity of the kitchen window, and went out to the front yard of the Watts' house to play, wading in the water in a shallow ditch along the gravel road hereinabove described.

(7)

'That very shortly thereafter, Mrs. Watts heard Jimmie Lee scream and not seeing Jimmie Lee in the yard by the kitchen window she ran out to the front yard in search of him, asking Neal Taylor, a negro living in front of the Watts' house, to help find the child; that Neal Taylor began to look for the child and finally walked over to the pond of water and saw the small foot prints of the child on the graded walk leading into the pond of water and noticed that the water therein had been disturbed; realizing that Jimmie Lee had walked into the pond of water, Taylor ran to the Williams' house, got a hoe, returned to the pond of water and removed the child therefrom; that the child was dead, having drowned in the said pond of water.

(8)

'That this terrible accident was due to the gross negligence of the defendant in maintaining a pond of water with a cement graded walk into it on his property, which constituted an attractive nuisance; that defendant knew or should have known that such a pond of water of this nature, particularly one with a graded walk into it, would attract children in the vicinity to play therein; that said defendant is guilty of gross negligence in failing to observe and guard against such a likely danger, and in failing to remove such a dangerous instrument from his premises.

(9)

'That some time prior to this fatal accident hereinabove described, a calf had drowned in this same pond of water and defendant had knowledge thereof but took no action whatsoever to have the said pond removed from his premises, nor did he take any action to guard against a similar happening, such as the one herein set forth.

(10)

'That defendant knew, or should have known, that children were accustomed to using the path running within ten feet of said pond of water and that such a pond of water would attract their attention and be alluring to them and would constitute a dangerous nuisance and be a dangerous instrumentality if maintained without taking any precautions to protect the said children, who passed close thereto on said path, to the certain knowledge of said defendant and with his acquiesence; that defendant is charged with knowing or, from the circumstances here present, he reasonably should have known, of the presence of irresponsible young children at the location of this dangerous and attractive pond of water maintained by him on his premises.

(11)

'That this particular pond of water that defendant maintained on his premises was a dangerous instrumentality--something in the nature of a trap; that it was built with a graded cement walk into it so that a child having been attracted to the dangerous instrumentality would begin to play in the pond and wade out into it, gradually being lured into the water until it reached a depth over his head, just as the deceased child, Jimmie Lee Watts, actually did, as herein set out.

(12)

'That because of his gross negligence in maintaining this said attractive nuisance described above, by which Jimmie Lee Watts met his death, the said defendant is indebted unto your pl...

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2 cases
  • O'Bier v. Manufacturers Cas. Co.
    • United States
    • Court of Appeal of Louisiana — District of US
    • 26 Enero 1954
    ...requisites by appellate courts of Louisiana are to be found in Saxton v. Plum Orchards, Inc., 215 La. 378, 40 So.2d 791; Watts v. Murray, La.App., 43 So.2d 303, and Midkiff v. Watkins, La.App., 52 So.2d 573. The holding of the Supreme Court in the Saxton case and of this court in the Watts ......
  • Louviere v. Great Am. Corp.
    • United States
    • Court of Appeal of Louisiana — District of US
    • 28 Febrero 1966
    ... ... See Saxton v. Plum Orchards, 215 La. 378, 40 So.2d 791; Watts v. Murray, La.App ., 43 So.2d 303; Martin v. Sessum Service Corporation, La.App., 174 So.2d 180 ...         In all of these cases as well as ... ...

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