McLean v. Ward , 1 N.C. App. 572 ( 1968 )

Campbell, J.

In the case of Hedgepath v. Durham, 223 N.C. 822, 28 S.E. 2d 503, it was held that a person has the right to maintain an unenclosed pond or pool on his premises. It is not an act of negligence to do so. When, however, a person exercises this right, and children of tender years are attracted thereto, and it becomes a common resort of persons of tender years to go there to play, and the owner knows this or by the exercise of ordinary care should know this, and the owner does nothing to prevent it or forbid it and by his conduct and actions permits such an unenclosed pond or pool to be used by children of tender years, then it is incumbent upon such owner to provide reasonably adequate protection against injury. Failure to do so constitutes an act of negligence. Barlow v. Gurney, 224 N.C. 223, 29 S.E. 2d 681.

Where, however, the owner of a private pond or lake does not permit children to play in it and does not give permission to do so either express or implied, there is no actionable negligence from the mere ownership of such a pond or pool.

In the instant case, the pond was an ordinary farm pond maintained for irrigation purposes. The defendant owner did not give permission either expressly or impliedly for children to play about the pond. Charles McLean, the father of the deceased child, testified:

“I have seen Mr. Ward down in the area of the pond. I saw him down there almost every day. I have seen children playing, I mean, down there at the pond. I have never seen any children down there at any time when Mr. Ward went by. * * *

“Mr. Ward had said something to me about the children being down there. He had told me to keep them away from there. He told me to keep the children away from the pond. I would say that he told me that four or five times. I remember him telling me. At the time he told me that I do not remember whether or not there were any children at the pond when he was down there. No sir, there wasn’t no children at the pond. As to what I would do to keep my children away from the pond, and in particular, this little boy, every time that I would catch them anywhere near the pond, I would whip them. I had whipped this child, Pierce Lee McLean, for going to the pond.”

The mother of the deceased, likewise, testified that the defendant had told her when he had seen the children playing near the pond at a time when water was being taken from the pond for irrigation purposes, “(a)nd so Mr. Ward told us, says, Annie Mae, you and Charles keep them younguns from this pond because it is extremely dangerous.”

All of the evidence tended to show that the defendant owner, not only did not permit children to play in or near the pond, but he expressly requested that they not be permitted to do so and had warned their parents to keep them away.

This case is controlled by the decision in Burns v. Gardner, 244 N.C. 602, 94 S.E. 2d 591, wherein it is stated:

“The drowning of the child upon stepping into the pond or lake stirs the sympathetic concern of all; but, upon the evidence offered, it does not appear that this tragedy can be attributed to actionable negligence on the part of the defendants.”

Hence, the judgment of involuntary nonsuit must be

Affirmed.

Britt and Morris, JJ., concur.