McLendon v. Hampton Cotton Mills

October 10, 1917. The opinion of the Court was delivered by Defendant appeals from judgment for plaintiff for $5,000 damages for the death of plaintiff's infant son by drowning in a reservoir built by defendant for the storage of water used in the operation of its cotton mill.

Plaintiff was an employee of defendant, and resided in the mill village several hundred yards from the reservoir. In August, 1915, his little boy, Victor, who was six years and ten months old, and several other boys were passing the reservoir, when Victor proposed to them that they climb over the fence surrounding it and go in wading. They did so, and Victor stepped into a deep place and was drowned.

The liability of defendant is put upon the ground that the reservoir was not properly safeguarded. There is no dispute about the material facts. The reservoir was surrounded by a fence, between four and five feet high, built of farm wire, with meshes about three inches in size at the bottom and increasing in size to the top. It had a wide plank for a baseboard and a 2x4 scantling for a top rail. It stood on the top of a sloping embankment six or eight feet high, which made the retaining wall of the reservoir. It was easy for a boy of Victor's age to approach and climp over the fence. But it was generally understood by the children of the village that they were not allowed to go inside the inclosure; and, while there were occasional violations of this prohibition, whenever children were seen inside the fence they were driven out by the company's watchman, who was also the village policeman, or by other employees who saw them. About three weeks before the accident, plaintiff saw some boys in there fishing, and took the occasion to warn Victor never to go in there.

There was testimony that the wire had been broken loose from one of the posts and pulled down so as to make it easier to get over the fence at that place, and that there was a hole in the bottom of the fence at another place large enough for a boy to get through, and that the gate, which was usually kept shut and fastened, was occasionally found open. But, conceding negligence in these respects, it cannot affect the decision, for it was not the cause of the injury, since the undisputed evidence is that the boys climbed over the fence where it was in good condition.

The question is not whether defendant should have provided a reasonably sufficient safeguard against the probability of injury resulting to children of the village who were too young to understand and appreciate the danger of going into or about the reservoir. That question was thoroughly considered and settled by the decision of this Court in Franksv. Cotton Oil Co., 78 S.C. 10, 58 S.C. 960, 12 L.R.A. (N.S.) 468, and the principle there announced has been followed in several subsequent cases. Hayes v. Power Co.,95 S.C. 230, 78 S.E. 956; Tucker v. Cotton Mills, 95 S.C. 302,78 S.E. 890, and 96 S.C. 466, 81 S.E. 182.

In the Franks and Tucker cases, children were drowned in reservoirs which were not fenced at all. In the Hayes case, the Court considered the question of properly safeguarding against a much greater danger — wires carrying a deadly current of electricity which were easily reached by the injured boy through a window in the transformer house which had been negligently left open. It is not necessary now to decide whether the rule of the Franks and Tucker cases, which was applied in thickly settled communities, should or will be extended to artificial bodies of water created in sparsely settled communities. For what is and what is not negligence depends so much upon the circumstances that no inflexible rule can be laid down by which all cases may be determined.

As pointed out in the opinion in the Franks case, the rule there adopted is an exception to the general rule applicable to adult trespassers. It is based upon the just and humane principle that one who creates upon his own premises a thing which is naturally attractive to children and at the same time dangerous to them, or which, although it may not be especially attractive to them, yet if left exposed where they are likely to come in contact with it, and their doing so is fraught with obvious danger to them, should anticipate their childish proclivities and exercise reasonable care to safeguard them from injury that otherwise would probably result. The exception is made in favor of children of tender years, because they are presumed to be incapable of understanding and appreciating the dangers into which they are led by their childish instincts.

But though this rule is just and humane, it should not be applied so as to impose unreasonable burdens or liabilities upon the owner or occupier of land in such cases. It does not make him an insurer of the safety of his neighbors' trespassing children. He is not bound to make their trespasses or their injury impossible. If he takes such measures or precaution as an ordinarily prudent person should take under the circumstances, and such as ought to be sufficient to prevent injury to children of normal instincts, proclivities, and training, he satisfies the requirements of the law. There are some children in nearly every community who are abnormally mischievous and disobedient, who not only defy parental authority, but public authority as well, and set at naught all reasonable rules and regulations, and seek to overcome every obstacle to the accomplishment of their wilful purposes. But the purpose of the rule is to save the child of ordinary and normal instincts and training from the consequences of that inadvertence or thoughtlessness which is natural to childhood. Therefore the landowner is not bound to erect a barrier which no child can overcome, but only such as is sufficient to safeguard the child of ordinary and normal instincts, habits and training. No Court would hold that a boy who broke the lock with which a turntable was locked and rode on it to his injury could recover damages of the railroad company, because the lock was not such that he could not have broken it.

The fence erected by defendant in this case was sufficient to safeguard the average normal child of the mill village against the danger of the reservoir. It kept them out, although it was easy for them to climb over a fence one, two, three, or four feet higher. But to hold that the fence must have been such that a boy could not climb over it would be to impose upon defendant the duty of extraordinary care and the liability of an insurer; and no Court has yet extended the rule further than to require ordinary precautions to prevent injury in such cases.

Defendant's motion for nonsuit should have been granted. This view makes it unnecessary to consider the other grounds of appeal.

Judgment reversed.

MR. CHIEF JUSTICE GARY and MR. JUSTICE FRASER concur in the opinion of the Court.