No. 526.

87 S.E.2d 879 (1955)

242 N.C. 347

Veda FORD, by her Next Friend, Harolee Ford, v. BLYTHE BROTHERS COMPANY, Inc.

Supreme Court of North Carolina.

June 30, 1955.

Attorney(s) appearing for the Case

Henry L. Strickland and Wm. H. Booe, Charlotte, for appellee.

Kennedy, Kennedy & Hickman, Charlotte, for appellant.

DENNY, Justice.

The appellant does not bring forward in its brief and discuss or cite any authority in support of these assignments of error: Nos. 1 through 10, 16, 25, 29 and 30. Therefore, each one of them will be deemed abandoned. Rule 28, Rules of Practice in the Supreme Court, 221 N.C. 544, 562.

Assignment of error No. 17, based on an exception to the refusal of the court below to sustain its motion for judgment as of nonsuit, interposed at the close of plaintiff's evidence and renewed at the close of all the evidence, presents the crucial question involved in this appeal.

The evidence clearly establishes the fact that the defendant knew that its clearing and excavating operation was attracting children in large numbers to the premises under its control; that its agents and servants knew of the frequent presence of children on the premises and on several occasions requested them to leave. The defendant's evidence also reveals that the children always left when requested to do so, but would return as soon as the person making the request left. The evidence likewise tends to show that the defendant's employees built fires and burned brush and other debris in the area where they knew the children were accustomed to play or cross in going to and from the apartment houses to a vantage point on the hillside, to watch defendant's trucks, bulldozers, scrapers, crane, and other equipment move to and fro on a level far below them. It would be difficult to conceive of anything short of a circus that would be more likely to attract children to premises than the conditions which existed on the premises controlled by the defendant for the period of six or seven weeks immediately prior to the time the plaintiff sustained her injuries. Even so, in the face of urgent pleas by mothers of children who lived in the nearby apartment houses, to build a fence between the P & N property and the apartment houses, or to otherwise guard against the children having access to the property while the clearing and grading operation was in progress, no action was taken in compliance with these requests until the morning of 25th July, 1952, when the defendant started to build a fence along the line of the P & N property. However, the fence had not been erected between the apartment house area and the P & N property when the plaintiff sustained her injuries.

In Briscoe v. Henderson Lighting & Power Co., 148 N.C. 396, 62 S.E. 600, 606, 19 L.R.A.,N.S., 1116, the plaintiff was not permitted to recover because the evidence failed to show that the premises of the defendant were especially attractive to children, or that children were accustomed to play there, but Connor, J., in speaking for the Court, said: "We think that the law is sustained upon the theory that the infant who enters upon premises having no legal right to do so, either by permission, invitation, or license, or relation to the premises or its owner, is as essentially a trespasser as an adult; but if, to gratify a childish curiosity or in obedience to a childish propensity, excited by the character of the structure or other conditions, he goes thereon, and is injured by the failure of the owner to properly guard or cover the dangerous conditions which he has created, he is liable for such injuries, provided the facts are such as to impose the duty of anticipation or prevision; that is, whether, under all of the circumstances, he should have contemplated that children would be attracted or allured to go upon his premises, and sustain injury. The principle is well stated in 21 Am. & Eng., Enc. 473, and was cited with approval in McGhee's Case [McGhee v. Norfolk & S. R. Co., supra, 147 N.C. 142, 60 S.E. 912, 24 L.R.A.,N.S., 119]. `A party's liability to trespassers depends upon the former's contemplation of the likelihood of their presence on the premises, and the probability of injuries from contact with conditions existing thereon.' Immediately following this language, the editor says: `The doctrine that the owner of premises may be liable in negligence to trespassers whose presence on the premises was either known, or might reasonably have been anticipated, is well applied in the rule of numerous cases that one who maintains dangerous implements or appliances on uninclosed premises, of a nature likely to attract children in play, or permits dangerous conditions to exist thereon, is liable to a child who is so injured, though a trespasser at the time when the injuries are received; and, with stronger reason, when the presence of a child trespasser is actually known to a party, or when such presence would have been known, had reasonable care been exercised.' "See also Ferrell v. Dixie Cotton Mills, 157 N.C. 528, 73 S.E. 142, 145, 37 L.R.A.,N.S., 64, in which this Court quoted with approval from 2 Shearman & Redfield on Negligence (4th Ed.), section 705, page 586, the following: "`The owner of land where children are allowed or accustomed to play, particularly if it is unfenced, must use ordinary care to keep it in a safe condition; for they, being without judgment, and likely to be drawn by childish curiosity into places of danger, are not to be classed with trespassers, idlers, and mere licensees.'"

The defendant contends the operation carried on by it did not constitute an attractive nuisance and that the law with respect thereto is not applicable, citing Briscoe v. Henderson Lighting & Power Co., supra; Boyd v. Atlanta & C. A. R. Co., 207 N.C. 390, 177 S.E. 1; Reid v. Sustar, 208 N.C. 203, 179 S.E. 659; Harris v. Winston-Salem Southbound R. Co., 220 N.C. 698, 18 S.E.2d 204; Hedgepath v. City of Durham, 223 N.C. 822, 28 S.E.2d 503; Boyette v. Atlantic Coast Line R. Co., 227 N.C. 406, 42 S.E.2d 462; Nichols v. Atlantic Coast Line R.Co., 228 N.C. 222, 44 S.E.2d 879, and similar cases. Certainly we are unwilling to hold that a clearing and grading operation such as that in which the defendant was engaged when the plaintiff was injured, constituted an attractive nuisance per se, but, on the other hand, it is not necessary that a thing or operation be an attractive nuisance in order for it to allure or attract children. For example, we have held in numerous cases that ponds, lakes, streams, reservoirs, and other bodies of water do not per se constitute attractive nuisances. Stribbling v. Lamm, 239 N.C. 529, 80 S.E.2d 270; Fitch v. Selwyn Village, 234 N.C. 632, 68 S.E.2d 255; Nichols v. Atlantic Coast Line R. Co., supra; Barlow v. Gurney, 224 N.C. 223, 29 S.E.2d 681; Hedgepath v. City of Durham, supra. But, Barnhill, J., now Chief Justice, in speaking for the Court in Barlow v. Gurney, supra [224 N.C. 223, 29 S.E.2d 682], in holding that it is not negligence for a person to maintain an unenclosed pond or pool on his premises, pointed out that "When, however, he exercises this right and children of tender years are attracted thereto and it becomes a common resort of persons of tender years to which they go to play, and it appears that the owner knows or by the exercise of ordinary care should know that it is being so used, then it becomes his duty to exercise ordinary care to provide reasonably adequate protection against injury. Failure so to do constitutes an act of negligence. Proximate cause is for the jury", citing numerous authorities.

The defendant further contends that if the plaintiff was attracted to its premises by the operation of its machinery and other equipment, as alleged, she is not entitled to recover since she was not injured by the machinery and equipment which attracted her. We cannot agree with this Contention.

In Comer v. City of Winston-Salem, 178 N.C. 383, 100 S.E. 619, 621, a child, twentyeight months old, was killed by falling from a bridge with insufficient guardrails. The bridge had been constructed across a large branch. A culvert was constructed underneath the bridge through which the branch flowed. As the water ran out of the culvert, over an extension of its base, it rushed out with considerable force, making such noise that people passing over the bridge could hear the rushing of the water. Owing to the dyes poured into the stream from the mills above the bridge, the water was at times of many colors. While the rippling of the water could be heard by the children on the bridge, the water could only be seen by them by leaning over the bannister or railing, or getting through it. The culvert was located about 200 feet from the child's home and was near a number of houses in the community, it being a residential and thickly settled section, adjoining the playground where the children of the neighorhood were accustomed to gather. The court below overruled the motion for judgment as of nonsuit and submitted the case to the jury. From a verdict in favor of the plaintiff, the defendant appealed to the Supreme Court. Clark, C. J., in writing the opinion disposing of the appeal, said: "The plaintiff did not claim that the bridge was defective, but relied upon the fact that the authorities knew that the rippling of the water and its many-hued colors attracted the children, and that for 20 years the locality adjacent had been a playground for them, and with knowledge of the natural curiosity of children in such cases more sufficient protection should have been placed at that point. * * * This is not even the case of an `attractive nuisance' on the property of another, which would render that other liable, if not sufficiently protected. A silent turntable on the property of a railroad would not attract the attention of children as irresistibly as their irrepressible curiosity would tempt them to investigate the cause of the gurgling of the many-hued water, which rushed from under the bridge 20 feet below the point at which they would attempt to see it. The bridge was not an attractive nuisance. It was not a nuisance at all. It was a necessary structure for the use of the city. But the noises made by the gurgling of the water would move children to wish to investigate the cause. * * * The negligence was not in the grade of the street, nor in the bridge or culvert, but in the want of sufficient protection for the children of the neighborhood frequenting that spot."

Likewise, in Arrington v. Town of Pinetops, 197 N.C. 433, 149 S.E. 549, 552, one Louis Morgan, father of Mamie Morgan, rented certain lands from John R. Pitt in Edgecombe on which to make a crop for the year 1926. The edge of Morgan's cotton field was only eleven steps from a power line owned by the Town of Pinetops. Sometime prior to the time Mamie Morgan was killed, the Hookerton Terminal Company, in excavating sand and gravel, had undermined one pole of the transmission line, leaving the wires thereon from five to seven feet above the ground, on top of an embankment. Mamie Morgan, a child nearly thirteen years old, and her half sister went into the woods adjoining the field of their father. Coming back from the woods to their work in the field, they stopped and were looking at the sand digger; it was not working. The half sister started on to the field when she heard a roaring. Mamie had her hand on the high voltage wire and was killed. From a verdict in favor of plaintiff, establishing primary liability against the Hookerton Terminal Company, and secondary liability against the Town of Pinetops, both defendants appealed. The Hookerton Terminal Company insisted that the little girl was a trespasser upon its property and that her administrator should not be allowed to recover. Brogden, J., said: "* * * the defendant, Hookerton Terminal Company, was charged with notice that these children were working in the field only 11 steps away, and that they had a right to use the woods for any lawful purpose. While there was no pathway or walkway at the place where the pole was excavated, still these children, doubtless attracted by the machinery and sand pit, could not be reasonably held as trespassers, in a legal sense, because they came up to the bank out of curiosity and peeped over into the sand pit."

In our opinion, it was within the reasonable prevision of the defendant to have foreseen that some injury might result from burning brush and other debris in the way and manner it did within the area it knew was frequented by children of tender years. Neither do we think the presence of the mother who came for and called her child, or the presence of McDaniel and his children, in any way relieved the defendant of its duty to keep the premises safe in the light of its knowledge of the frequent presence of children. There is nothing in the evidence to indicate that the mother of this plaintiff had any information or knowledge that would put her on notice that a bed of coals lay under the apparently harmless bed of ashes, while the defendant's agents and servants knew that a fire had been burning there all day, the day before the accident. They also knew the type and character of trash and debris that had been burned there, but made no effort to see that the fire was put out. Furthermore, there is no question about the ash bed containing live coals beneath the surface, a condition for which the defendant was responsible and which we think it might reasonably have foreseen was likely to cause an injury to a child of tender years, should it walk or run through it.

Therefore, in our opinion, the court's ruling on the defendant's motion for judgment as of nonsuit was correct.

Assignments of error Nos. 11, 12, 13, 14 and 15 are based on exceptions to the admission of expert testimony by Dr. William H. Shaia, who treated the plaintiff at the time of her injury, and that of Dr. George D. Page, who examined her on 21st May, 1954, as to whether or not such injuries as those sustained by the plaintiff could cause any traumatic neurosis or personality shock to her. Both experts expressed the opinion that they could. We think the testimony of these experts, to which the defendant objected, was admissible, particularly in view of other testimony offered by the plaintiff, without objection, to the effect that plaintiff was not a nervous child before her injury; that she ate and slept well, but since the accident she is excitable, nervous, afraid of noises, and neither eats nor sleeps well. The fact that these expert witnesses further testified that the experience encountered by the plaintiff in connection with her injuries might or might not result in traumatic neurosis or personality shock to her, goes to the weight of their testimony rather than to its admissibility.

The defendant also excepts and assigns as error the following excerpt from the court's charge to the jury: "The fact that the defendant has been guilty of negligence, followed by an injury, does not make such defendant liable for that injury which is sought to be referred to the negligence unless the connection of cause and effect is established, and the negligent act of the defendant must not only be the cause, but the proximate cause, that is the producing cause of the injury complained of."

We concede that it would have been more appropriate if his Honor had said: The fact that a defendant has been guilty of negligence, etc., or, the fact that a defendant may have been guilty of negligence, etc. However, in this portion of the charge the court was dealing with definitions and the requisites necessary to establish actionable negligence. Moreover, when the court came to charge the jury on the issue of negligence, it clearly put the burden on the plaintiff to establish the negligence of the defendant by the greater weight of the evidence. This lapsus lingua on the part of his Honor, in our opinion, was not prejudicial to the defendant when the charge is considered as a whole. Hence, this assignment of error is overruled.

We have carefully examined the remaining assignments of error and, in our opinion, they present no harmful or prejudicial error that would justify us in disturbing the result of the trial below.

In the trial below we find no error.

No error.


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