Burns v. Gardner

94 S.E.2d 591 (1956)

244 N.C. 602

Mrs. Margaret T. BURNS, Administratrix of the Estate of Beverly J. Burns, Deceased, v. A. H. GARDNER and wife, Leila S. Gardner.

No. 245.

Supreme Court of North Carolina.

October 10, 1956.

Guy T. Carswell and George J. Miller, Charlotte, for plaintiff, appellant.

Charles W. Bundy, Charlotte, for defendants, appellees.

PER CURIAM.

When the cause was here on former appeal, three members of the Court were of opinion that plaintiff's allegations, liberally construed, sufficiently alleged negligence to justify the overruling of the demurrer. Upon consideration of plaintiff's evidence, we are unanimously of the opinion that such evidence, taken in the light most favorable to plaintiff, is insufficient to warrant submission to the jury of an issue as to actionable negligence of defendants.

"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." Lovin v. Hamlet, 243 N.C. 399, 402, 90 S.E.2d 760, 763, and cases cited.

Nothing appears in the evidence to show that children played in or about defendants' pond or lake with their permission, express or implied. The testimony of certain school children, witnesses for plaintiff, who had trespassed on defendants' premises on certain occasions to play in or about the pond or lake, shows plainly that whenever they were caught by defendants they were warned of the danger and ordered to keep away. Their testimony is to the effect that they knew they had no business in or about the pond or lake and made their visits when defendants were away from home or otherwise unaware of their presence.

The drowning of the child upon stepping into the pond or lake stirs the sympathetic *592 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.

Affirmed.

JOHNSON, J., not sitting.