No. 21.

107 S.E.2d 143 (1959)

249 N.C. 575

Grover C. MATHENY, Administrator of the Estate of Johnny Matheny, Deceased, v. STONECUTTER MILLS CORPORATION. Clyde ERWIN, Administrator of the Estate of Albert Sanford Erwin, v. STONECUTTER MILLS CORPORATION.

Supreme Court of North Carolina.

February 25, 1959.

Attorney(s) appearing for the Case

Hamrick & Hamrick, Rutherfordton, for plaintiffs, appellants.

Harkins, Van Winkle, Walton & Buck, Asheville, and Hamrick & Jones, Rutherfordton, for defendant, appellee.

MOORE, Justice.

"The overwhelming weight of authority in this country is to the effect that ponds, pools, lakes, streams, reservoirs, and other bodies of water, do not per se constitute attractive nuisances. 56 Am.Jur., Waters, section 436, page 850. `The attractive nuisance doctrine generally is not applicable to bodies of water, artificial as well as natural, in the absence of some unusual condition or artificial feature other than the mere water and its location.' 65 C.J.S., Negligence, § 29 (12) j, p. 475. It is, therefore, not negligence per se to maintain (even) an unenclosed pond, pool, lake, or reservoir on one's premises." Fitch v. Selwyn Village, 234 N.C. 632, 68 S.E.2d 255, 257, and cases there cited. This principle was quoted with approval in Stribbling v. Lamm, 239 N.C. 529, 80 S.E.2d 270.

A person has the right to maintain even an unenclosed pond or pool on his premises, and it is not negligence per se to do so. "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." Barlow v. Gurney, 224 N.C. 223, 29 S.E.2d 681, 682, and cases there cited.

The most satisfactory theory as applied to cases such as the one under consideration is that the landowner's liability rests upon the general legal standard of social conduct, i. e., due care under the circumstances. The owner or occupier of land must use such care as a man of ordinary prudence would use under the circumstances to prevent injury to others because of the dangerous condition of his premises when such condition is known, or should have been known, to him, and may be remedied and guarded against readily with reasonable cost, when the presence of other persons and their exposure to such hurt may be reasonably anticipated. 26 N.C.L.Rev., 228, and cases there cited.

No one is an insurer of the safety of children merely because he is the owner of places that may appeal to their youthful fancies. It is required only that he take reasonable precautions to prevent injury to them. He is not bound to make a trespass by or injury to children impossible. All that is required of him is to take such precautions, by way of erecting guards, providing fences or furnishing other means, as are reasonably sufficient to prevent trespassing by children. He need not take precautions against every conceivable danger to which an irrepressible spirit of adventure may lead a child. There is no duty to take precautions where to do so would be impracticable or unreasonable. The duty to safeguard against the danger is subject to the qualification that it can be done without serious inconvenience and without great expense to the owner. 38 Am.Jur. Negligence, Sec. 147, p. 812.

McMillin's Adm'r v. Bourbon Stockyards, 179 Ky. 140, 200 S.W. 328, 330, L.R.A.1918C, 682, is a case in point. The defendant maintained a cattle dip containing water and chemicals. The dip was enclosed by a solid fence, but the gate thereto was sometimes left open. A six-year-old boy entered through the open gate and came to his death by falling into the dip. Boys in the neighborhood habitually played around the dip but were ordered away when seen there. There was judgment for the defendant. Speaking to the subject the Court said: "The owner need not keep gates that are on his inclosed premises continually locked, and need not build his fence so high that no person can climb over it; nor is he required to have servants continually on the lookout for trespassing children. He need only exercise reasonable care, considering all of the surrounding conditions and circumstances * * *."

Plaintiffs cite Starling v. Selma Cotton Mills, 168 N.C. 229, 84 S.E. 388, L.R.A. 1915D, 850, and Price v. Atchison Water Co., 58 Kan. 551, 50 P. 450, in support of their position. But in the former case defendant had allowed its fence to rot in places with openings large enough to admit the passage of children; and in the latter case there was a kind of stile over the fence.

In the instant case the defendant erected a reasonable safeguard—a metal fence of small mesh, topped by three strands of barbed wire—in all seven feet high. There was no gate. The fence was kept in good condition. It was difficult to furrow under and to climb over. A hole found under the fence was "patched up" before the time in question. There were no windows in defendant's buildings facing the reservoir. The office was some distance away. Trespassers at the reservoir could not be readily seen by defendant's employees. Defendant was under no duty to place a watchman at the reservoir or to keep the enclosure within the fence as befits a lawn. We think the trial court was correct in granting the motions for judgment as in case of nonsuit.

The appellants' brief brings forward a number of assignments of error with respect to testimony excluded upon the trial. These have been carefully examined. Had such testimony been allowed, it would have been merely cumulative and could not have affected the decision on this appeal. The other assignments of error are merely academic in this case in view of the decision herein.

The judgment of nonsuit is


WINBORNE, C. J., took no part in the consideration or decision of this case.


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