Nichols v. . R. R.

Action to recover damages for wrongful death of plaintiff's intestate alleged to have been caused by the negligence of the defendant. It was alleged that defendant negligently failed properly to safeguard a small pool which it permitted to be maintained on its right of way near its station in Aulander, N.C. and that in consequence plaintiff's intestate, a child of less than three years, was drowned.

At the close of plaintiff's evidence motion for judgment of nonsuit was allowed, and from judgment dismissing the action plaintiff appealed. Near its railroad station in Aulander, the defendant had permitted the construction and maintenance of a small circular unenclosed pool, six and one-half feet in diameter and twenty-four inches deep. There were some goldfish in the pool. Across the street or road from the pool was an open baseball ground or park in which children were accustomed to play. On the morning of 30 June, 1946, the plaintiff's intestate, aged two years and seven months, in company with four other small children whose ages ranged from five to ten years, left the home of the plaintiff, with her consent, crossed the railroad track and went to the ball ground, some two hundred and forty feet distant. After the children had played a while, the intestate said he was going home and left, going in that direction. Sometime afterward this child was found in the pool, drowned.

The plaintiff asks recovery for the death of the child on the principle enunciated in Barlow v. Gurney, 224 N.C. 223, 29 S.E.2d 681;Cummings v. Dunning, 210 N.C. 156, 185 S.E. 653, and Brannon v.Sprinkle, 207 N.C. 398, 177 S.E. 114. But here the record is lacking in evidence that the small shallow pool described was the common resort of children, or that small children played in and around it to such an extent as to impose upon the defendant the duty of exercising due care to safeguard it. Nor is the evidence such as to invoke the principle of liability for injury to children from the maintenance of inherently dangerous instrumentalities which are attractive and alluring to them as discussed by Justice Walker in Ferrell v. Cotton Mills, 157 N.C. 528,73 S.E. 142. See also Harris v. R. R., 220 N.C. 698, 18 S.E.2d 204;Boyette v. R. R., 227 N.C. 406, 42 S.E.2d 462, and cases cited. There was nothing to put the defendant on notice of any danger reasonably to be apprehended from the maintenance of the pool. Indeed, the plaintiff, the mother of the child, testified: "It did not occur to me that it was dangerous, or that the child would drown." It was said in Lee v. UpholsteryCo., 227 N.C. 88, 40 S.E.2d 688, that "It must be made to appear that the injury was the natural and probable consequence of the negligent act and ought to have been foreseen in the light of attending circumstances."

Deplorable as was the death of the child by drowning in the shallow pool, the evidence does not make it appear that this unfortunate occurrence was one which reasonably should have been anticipated and guarded against by the defendant. Boyette v. R. R., supra; Hedgepath v. Durham, 223 N.C. 822, 28 S.E.2d 503.

The judgment of nonsuit will be upheld.

Affirmed.