Williams v. Bolding

• Decision Date: 07 November 1929
• Docket Number: 8 Div. 128.
• Citation: 124 So. 892,220 Ala. 328
• Parties: WILLIAMS ET AL. v. BOLDING.
• Court: Alabama Supreme Court

124 So. 892

220 Ala. 328

WILLIAMS ET AL. v. BOLDING.

8 Div. 128.

Supreme Court of Alabama

November 7, 1929

Rehearing Denied Dec. 19, 1929.

Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.

Action by Thetis Clyde Bolding, a minor suing by her next friend, J L. Bolding, against J. O. Williams and another. From a judgment for plaintiff, defendants appeal. Transferred from Court of Appeals under Code 1923, § 7326. Reversed and remanded.

J. A Lusk, of Guntersville, for appellants.

Street Bradford & Street, of Guntersville, for appellee.

BROWN J.

This is an action on the case of appellee, a child seven years of age, suing by next friend, against appellant, for personal injuries resulting to her from the explosion of a dynamite cap obtained from a quantity of such caps left by the defendants uninclosed and unguarded in a culvert on a road being constructed by the defendants, and which exploded in plaintiff's hand while she was at play.

The complaint consists of three counts; the first avers, inter alia: "That plaintiff while playing upon certain parts of said road, together with her companions of like age, came upon a number of cases of dynamite and dynamite caps which were in an unprotected place within a large cement culvert, which had been negligently left there by said defendants, or those employed by them, in the erection or building of said road, and while there became attracted by the said dynamite and dynamite caps, and due to their attractiveness picked one of them up and carried it off with her; upon reaching her home, due to her lack of knowledge of their dangerous nature accidently discharged said dynamite cap," (resulting in her injury) "and plaintiff avers that said dynamite and dynamite caps are attractive to children of tender years, who did not know their dangerous character, but that the same was dangerous for children to play with, because it was of a highly dangerous and explosive nature, and on account of its construction and location of a child playing with same was liable to be injured, and plaintiff avers that said dynamite caps were negligently kept in an open and public place, where people frequently passed and repassed, and children did and were liable to play, and defendant well knowing these facts carelessly and negligently left said dynamite caps unlocked, uninclosed and otherwise unguarded." (Italics supplied.) The second count, though two defendants are sued, claims damages of "defendant," and avers: That "defendants owned and kept dynamite caps on a certain dirt road which they were constructing near plaintiff's home *** in an open and accessible place, where children did play and were liable to play, and the defendant knowing or having reason to believe that children resorted or would resort to its dynamite caps in play, and that they were articles highly dangerous for children to play with, negligently and in wanton disregard of the safety of the plaintiff allowed or suffered the said dynamite caps to remain unattended, uninclosed and unguarded, so that children could easily gain access to and move or touch or carry off the same, *** and plaintiff *** while playing on said road picked up and carried off said dynamite cap or caps, which due to her lack of knowledge of said caps and their dangerousness of character, were caused to explode" to her injury. (Italics supplied.)

The third count, in substance, is the same as count 2, without the element of wantonness, and claims of the "defendant" and avers that "he or they" owned and negligently kept dynamite caps near the home of plaintiff in an open and accessible place "where children resort to play, and the defendant knowing or having reason to believe that children resorted to play or would resort to play where said caps were kept in an open and accessible place, *** nevertheless negligently allowed said dynamite caps to remain uncovered and unguarded and easily accessible to children," etc. (Italics supplied.)

The theory of the defendants, as advanced in the demurrers which were overruled, is that these counts are bad, (1) in failing to negative plaintiff's private ownership of the property where these explosives were kept; (2) they do not show that defendant invited or even knowingly permitted plaintiff to use or be upon said road, or that it in fact knew of plaintiff's presence thereon, or that the child injured was accustomed to playing thereon; (3) that it appears that the plaintiff was a trespasser.

The application of the doctrine invoked, commonly referred to in the books as "the attractive nuisance doctrine," is not necessarily influenced by the right of property or the right to use the property, but upon the apparent probability of danger, and the measure of care of the author of the contrivance that causes the injury, "for ordinarily the duty of avoiding known dangers to others under some circumstances operates to require care for persons who may be at the place of danger without right." Sheffield Co. v. Morton, 161 Ala. 153, 49 So. 772; A. G. S. R. Co. v. Crocker, 131 Ala. 584, 31 So. 561, 563.

To state the proposition in the language of the opinion the last-cited case: "Ownership of property may carry with it the right of the owner to use, and to exclude others from the use of, the property; but, however exclusive may be the owner's rights, he is subject always to the maxim, 'Sic utere tuo ut alienum non laedas.' Common prudence forbids that one may arrange, even on his own premises, that which he knows, or, in the exercise of common judgment and prudence, ought to know, will naturally attract others into unsuspected danger of great bodily harm. It is the apparent probability of danger, rather than rights of property, that determines the duty and measure of care required of the author of such a contrivance; for ordinarily the duty of avoiding known danger to others may, under some circumstances, operate to require care for persons who may be at the place of danger without right." Alabama G. S. R. Co. v. Crocker, 131 Ala. 590, 31 So. 561, 563.

Nor is an express invitation to, or knowledge that the particular person will or may resort to, the place, essential to liability. The import of the doctrine as primarily applicable is that: "'One who maintains dangerous instrumentalities or appliances on his premises of a character likely to attract children in play, or permits dangerous conditions to remain thereon with the knowledge that children are in the habit of resorting thereto for amusement, is liable to a child non sui juris who is injured therefrom.' This doctrine is an exception to the general rule that a property owner owes no duty to trespassers except not to willfully or intentionally inflict injury upon them." 20 R. C. L. p. 79, § 70; Mattson v. Minnesota, etc., R. Co., 95 Minn. 477, 104 N.W. 443, 70 L. R. A. 503, 111 Am. St. Rep. 483, 5 Ann. Cas. 498; Dahl v. Valley Dredging Co., 125 Minn. 90, 145 N.W. 796, 52 L. R. A. (N. S.) 1173.

Invitation may be implied from the nature of the place or instrumentality, its accessibility, its use, its alluring qualities calculated to attract children of immature judgment and lack of appreciation of the danger, and in this respect as observed by Cooley, C.J., in Powers v. Harlow, 53 Mich. 507, 19 N.W. 257, 260, 51 Am. Rep. 154, a case bearing considerable analogy to the case in hand, "children, wherever they go, must be expected to act upon childish instincts and impulses; and others who are chargeable with a duty of care and caution towards them must calculate upon this, and take precautions accordingly." Bryan v. Stewart, 194 Ala. 357, 70 So. 123. Only when the...