Dean v. Wilson Construction Company

111 S.E.2d 827 (1960)

251 N.C. 581

Lillian A. DEAN, Administratrix of James Hylton, v. WILSON CONSTRUCTION COMPANY, a corporation.

No. 464.

Supreme Court of North Carolina.

January 14, 1960.

*831 Dupree & Weaver and David R. Cockman, Raleigh, for plaintiff, appellant.

Smith, Leach, Anderson & Dorsett, Raleigh, for defendant, appellee.

BOBBITT, Justice.

The evidence does not support the allegations in plaintiff's paragraph 15, quoted in the statement of facts. The evidence relating to these allegations tends to show: At times, when the work was in progress, onlookers, including small children, stood at the barricades and watched the operation of the machinery. At times, older boys watched from closer positions. Hylton, Strobel and Boder had watched from a bank on the Roberts property. Boder testified they "went off the bank and went around right where they were working." Strobel testified that at such time he got "within about 30 feet of it * * *." Mrs. Dean testified that, "after working hours every afternoon," she had observed small children and persons of all ages "at or about this equipment." There was no evidence that any person either during or after working hours had undertaken to get upon and to intermeddle in any way with any equipment in the construction area.

It was "still daylight" when the fatal accident occurred. The three fourteen-year old neighborhood boys could observe and were fully aware of the existing physical conditions, including the location of the power lines.

We are not concerned directly with Hylton's conduct in climbing upon and starting the bulldozer in the area south of the area of defendant's operations. However, if he was not already fully aware of his status as a trespasser and of the danger involved in his attempted operation of the bulldozer, Mrs. Perry's warning was sufficient to bring these facts to his attention. Disregarding Mrs. Perry's warning, he proceeded to the crane.

In opening the door and entering the cab of the crane, in his first operation thereof, and in his later operation thereof for a specific purpose, all of Hylton's efforts were intentional and deliberate. They reflect a steady nerve, daring, alertness, intelligence and skill. In getting into and operating defendant's crane, Hylton was a trespasser and was well aware of that fact.

*832 "As affecting liability for injury resulting from the condition of premises in private ownership or occupancy, one who enters without permission or other right is a trespasser." Hood v. Queen City Coach Co., 249 N.C. 534, 107 S.E.2d 154, 158. "The duty owed to trespassers is that they must not be wilfully or wantonly injured." Jessup v. High Point, Thomasville & Denton R. R. Co., 244 N.C. 242, 93 S.E.2d 84, 87; 65 C.J.S. Negligence § 24; 38 Am.Jur., Negligence, § 110.

There being no evidence that Hylton's death was caused by the wilful or wanton negligence of defendant, plaintiff frankly bases her alleged right to recover on the so-called attractive nuisance doctrine, citing Ford v. Blythe Brothers Co., 242 N.C. 347, 87 S.E.2d 879, where Denny, J., quotes (with approval) from Judge Connor's opinion in Briscoe v. Henderson Lighting & Power Co., 148 N.C. 396, 62 S.E. 600, 19 L.R.A.,N.S., 1116. See 1 N.C.L.R. 162, "Limitations of the Attractive Nuisance Doctrine," where the Briscoe case is discussed in detail, and Campbell v. Model Steam Laundry, 190 N.C. 649, 130 S.E. 638, where Varser, J., citing the Briscoe case, stated that this Court was not disposed to extend the so-called attractive nuisance doctrine.

In the Briscoe case, where demurrer was sustained, the plaintiff was a 13-year old boy. In the Ford and Campbell cases, recovery was allowed. In Ford, a three-year old girl stepped into a latent bed of hot ashes. In Campbell, a four-year old boy climbed upon an electric delivery truck, improperly parked, and pushed a lever and thereby set it in motion. The present case does not involve a deceptive condition or latent danger, nor does it involve an accidental setting in motion of machinery.

Full discussions of the origin of the socalled attractive nuisance doctrine and of the divergent decisions relating thereto are set forth in 65 C.J.S. Negligence § 29, and in 38 Am.Jur., Negligence, § 142 et seq. North Carolina decisions relating thereto are cited and discussed in 13 N.C.L.R. 340 and in 26 N.C.L.R. 227.

There is a growing tendency to discard the phrase "attractive nuisance doctrine" as denoting an inflexible rule of law of precise meaning. Thus, in the Restatement of the Law of Torts, § 339, under the caption, "Artificial Conditions Highly Dangerous to Treaspassing Children," the conditions under which "A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land," are set forth. The legal principles there stated have received widespread approval. Prosser on Torts, Second Edition, § 76, p. 440 et seq.; 65 C.J.S. Negligence § 28, p. 454.

Under our decisions, to invoke the attractive nuisance doctrine, it is essential that "the facts are such as to impose the duty of anticipation or prevision." Briscoe v. Henderson Lighting & Power Co., supra [148 N.C. 396, 62 S.E. 606]. In our view, the evidence is insufficient to support a finding that defendant knew, or in the exercise of reasonable care should have foreseen, that children or persons of any age were likely to open the door of the cab, climb into the operator's seat and undertake to operate the crane. Indeed, it would seem that Hylton's venturesome conduct far exceeded the limits of reasonable prevision.

Yount, during ten years experience, had never known a person other than a trained operator to attempt the operation of a crane. Mrs. Dean testified: "I had never known him (Hylton) to get on cranes or heavy machinery such as this before this day." Again: "I had not specifically warned him to stay off any of this equipment; I saw no necessity for doing that."

Moreover, the attractive nuisance doctrine is designed to protect "small children" or "children of tender age." 38 Am. Jur., Negligence, § 157. It applies to children who, "because of their youth do not *833 discover the condition or realize the risk involved in intermeddling in it or coming within the area made dangerous by it." Restatement of the Law of Torts, § 339(c). "It does not extend to those conditions the existence of which is obvious even to children and the risk of which is fully realized by them." Restatement of the Law of Torts, § 339, comment, p. 922.

"The attractive nuisance doctrine applies only in favor of children of tender years who are too young to understand and appreciate danger, and excludes those who have reached years of discretion and are able to understand and appreciate the danger or who, knowing the hazard, assume the risk of doing that which will imperil their lives or limbs, even though the owner has notice that children are accustomed to come about the place of danger. "While there is no definite age fixed at which a child ceases to be entitled to the protection of the attractive nuisance doctrine, the great majority of cases in which it has been applied have involved children of less than ten years of age, and it has been considered that it cannot be applied to a child of the age of fourteen or over, at least in the absence of some showing of a lack of the mental development which is ordinarily found in children of that age or of a very exceptional state of facts." 65 C.J.S. Negligence § 29(11).

In Briscoe v. Henderson Lighting & Power Co., supra, Connor, J., states: "Again in the numerous cases which we have examined we do not find any in which a boy of 13 years, `with the usual intelligence of boys of that age,' has been permitted to rely upon the attractive allurements of machinery to children."

James Hylton was a well-developed and healthy 14-year old boy. Mrs. Dean testified: "I felt that he did have quite a good mind. He had successfully completed the seventh grade at Josephus Daniels High School * * *." He was interested in outdoor sports, particularly baseball and fishing. Mrs. Dean testified: "And he was crazy about the Marines. He was interested in his church, Sunday school and scouting." Indeed, all the evidence leaves the impression that he possessed as much as or more than "the usual intelligence of boys of that age."

Much as we may admire James Hylton, and much as we may deplore his untimely death, the fact remains that the evidence shows unmistakably that (1) he knew he was a trespasser, (2) he was conscious of the danger, and (3) he deliberately risked the consequences of his wrongful conduct. Under these circumstances, we are of opinion, and so hold, that plaintiff may not, under the attractive nuisance doctrine or otherwise, recover from defendant for James Hylton's death.

If, instead of causing his own death, Hylton, in operating the crane, had caused injury or death to an innocent bystander, unquestionably such injury or death would have resulted from Hylton's actionable negligence. The evidence, taken in the light most favorable to plaintiff, discloses that her intestate's negligence was either the proximate cause, or in any event a contributing proximate cause, of his own death. Tart v. Southern R. Co., 202 N.C. 52, 161 S.E. 720; Van Dyke v. Atlantic Greyhound Corp., 218 N.C. 283, 10 S.E.2d 727; Luttrell v. Carolina Mineral Co., 220 N.C. 782, 18 S.E.2d 412.

For the reasons stated, the judgment of involuntary nonsuit is affirmed.

Affirmed.