Opinion
6 Div. 890.
November 3, 1927. Rehearing Denied January 12, 1928.
Appeal from Circuit Court, Jefferson County; John Denson, Judge.
Cabaniss, Johnston, Cocke Cabaniss and Brewer Dixon, all of Birmingham, for appellant.
A landowner is under no duty towards trespassers or licensees, adult or infant, to guard or inclose ditches, excavations, ponds, or pits existing on his land, to prevent such trespassers or licensees from falling therein. Such ditches, etc., embody perils which are deemed obvious to children even of tenderest years, and no liability attaches to the proprietor by reason of injury to children while playing thereabouts. Eades v. Amer. C. I. P. Co., 208 Ala. 556, 94 So. 593; 36 A.L.R. 34-294; Gandy v. Copeland, 204 Ala. 366, 86 So. 3; Thompson v. Alexander City C. Mills, 190 Ala. 184, 67 So. 407, Ann. Cas. 1917A, 721; McCabe v. Amer. Woolen Co. (C. C.) 124 F. 283; Athey v. T. C. I. R. Co., 191 Ala. 646, 68 So. 154. The liability of the landowner who expressly invites others to enter his premises is only coextensive with his invitation, and his duty of care is limited to that. Gavin v. O'Connor, 99 N.J. Law, 162, 122 A. 842, 30 A.L.R. 1383; 30 A.L.R. 1390, note; Ryerson v. Bathgate, 67 N.J. Law, 337, 51 A. 708, 57 L.R.A. 307; Dalin v. Worchester C. S. R. Co., 188 Mass. 344, 74 N.E. 597. Refusal to grant a new trial on ground the verdict was contrary to the great preponderance of the evidence will be reversed if, after allowing all reasonable presumptions in favor of the correctness of the verdict, the preponderance of the evidence against the verdict is so decided as to involve the conviction that it is wrong and unjust. L. N. R. Co. v. Rush, 208 Ala. 516, 94 So. 577; Peters v. Southern Ry. Co., 135 Ala. 533, 33 So. 332; Cudd v. Bentley, 204 Ala. 586, 87 So. 85.
Black Fort and Fort, Burton Jones, all of Birmingham, for appellee.
A landowner or occupier owes a duty of care to those who come upon his land by invitation, express or implied, to so guard or protect a dangerous excavation as to prevent injury to such invitee where such dangerous excavation is left so exposed that such invitee may be likely endangered by it. Thompson v. Alexander Cot. Mills, 190 Ala. 184, 67 So. 407, Ann. Cas. 1917A, 721; Gandy v. Copeland, 204 Ala. 366, 86 So. 3; Athey v. T. C. I. R. Co., 191 Ala. 646, 68 So. 154; Mudd v. Gray, 200 Ala. 92, 75 So. 468; Southern Ry. v. Bates, 194 Ala. 78, 69 So. 131, L.R.A. 1916A, 510; Scroggins v. A. G. P. Co., 179 Ala. 213, 60 So. 175; A. G. S. v. Godfrey, 156 Ala. 202, 47 So. 185, 130 Am. St. Rep. 76; M. E. Ry. Co. v. Thompson, 77 Ala. 448, 54 Am. Rep. 72; Eades v. Amer. C. I. P. Co., 208 Ala. 556, 94 So. 593. It is the duty of the owner who invites a child of 3 years to be around and about a dangerous excavation to guard and protect same so that such child will not be injured by falling therein. Authorities, supra. It is the duty of the landowner to keep in reasonably safe condition those ways and approaches and that part of the premises over which he retains exclusive control so that they may safely be used by members of the tenant's family. Phillips v. Library Co., 55 N.J. Law, 307, 27 A. 478; Golob v. Pasinsky, 178 N.Y. 458, 70 N.E. 973; Looney v. McLean, 129 Mass. 33, 37 Am. Rep. 295. It was not necessary to allege the quo modo of the invitation to plaintiff. 4 Words and Phrases, 3760; Birmingham v. Carlson, 209 Ala. 428, 96 So. 333; Knox v. Rivers Bros. Co., 17 Ala. App. 630, 88 So. 33; Wood v. Barnett, 208 Ala. 295, 94 So. 338; Hughes v. Bickley, 205 Ala. 619, 89 So. 33. An invitation may be inferred from evidence of a path. United Zinc C. Co. v. Britt, 258 U.S. 268, 42 S.Ct. 299, 66 L.Ed. 615, 36 A.L.R. 28; Phillips v. Library Co., supra.
Counsel for the appellant cite the attractive nuisance cases. They are collected in Gandy v. Copeland, 204 Ala. 366, 86 So. 3, and adhered to by this court. Golson v. Covington Mfg. Co., 205 Ala. 226, 87 So. 439; Eades v. Amer. Cast Iron Pipe Co., 208 Ala. 556, 94 So. 593; Robins v. Central of Ga. Ry., 212 Ala. 596, 103 So. 672. See, also, 36 A.L.R. 69, note, et seq.; 23 A.L.R. 1009, note.
The rule of duty as to an invitee, and especially as to a child of tender age, irrespective of whether the inquiry was by reason of an attractive nuisance, is stated in Thompson v. Alexander City Cotton Mills, 190 Ala. 184, 191, 67 So. 407, Ann. Cas. 1917A, 721, and cited with approval in later decisions. Gandy v. Copeland, 204 Ala. 366, 86 So. 3; Golson v. Covington Mfg. Co., 205 Ala. 226, 229, 87 So. 439. And appellee insists that he drew his pleading under the general rule of duty rather than the special rule as to an attractive nuisance. It is, though the proprietor is not responsible for the negligent act or omission, as that of an independent contractor, yet the inherently dangerous character of the instrumentality installed or created on his premises raises the "proprietor's duty to take reasonable care that his invitees or licensees will not suffer injury from such agency, and this duty is emphasized where notice or knowledge of the customary presence of children about such danger is possessed by the proprietor"; that is to say, "an element of this duty is the" law's "exaction that a proprietor shall exercise reasonable care and diligence to inspect his premises, with a view to becoming sufficiently advised to meet this duty's demand toward those who it is reasonable to expect will enter the premises." Golson v. Covington Mfg. Co., 205 Ala. 226, 229, 87 So. 439, 441; 17 A.L.R. 855, note; 23 A.L.R. 1010, note.
There was no error in overruling demurrer to count 3, challenged as containing mere conclusions of the pleader in the use of the words "was invited to be and play," etc. The word "invited" was not a mere conclusion, and in common parlance the sufficient statement of a material collective fact. 4 Words and Phrases, p. 3760. There is analogy in our cases permitting such words and phrases in pleadings as "public highway"; "duly presented"; "necessary for a sale for division"; and "made or brought about a sale." Such statements have been permitted. City of Birmingham v. Carlson, 209 Ala. 428, 96 So. 333; Wood v. Barnett, 208 Ala. 295, 94 So. 338.
It will be further observed of this and other counts that they are not rested upon the attractive nuisance cases, but upon the general duty in the premises of a landowner to third persons who are invitees and licensees, and especially to children of tender age invited upon the premises, and known to be exposed to dangerous artificial agencies. This was the theory of the trial that resulted in the judgment from which the appeal is taken.
In Eades v. Amer. Cast Iron Pipe Co., supra, the observation was that the child when injured was at a place where it had no right to be. It is stated in that opinion that appellant's reliance was for recovery upon "the attractive nuisance and pitfall or concealed peril doctrine." The case of Gandy v. Copeland, supra, relied upon the attractive nuisance theory for his implied invitation. And the case of Thompson v. Alexander City Cotton Mills, supra, held no error in refusing to set aside the verdict, since the injury did not occur to the child while occupying the place where the children of employees (and the plaintiffs intestate) were accustomed to be or play, and were not invited — expressly or by implication — to be within the zone of danger and where the injury occurred. And in Athey v. Tenn. Coal, Iron Ry. Co., 191 Ala. 646, 68 So. 154 (as to the city) it was declared to rest upon the ground that the child had no right to be at the place where the injury occurred, and as to the Tennessee Coal, Iron Railway Company it had no control of the construction, operation, or repair of the ditch in which intestate was drowned.
In the count challenged it is alleged that "she was invited to be and to play around said artificial hole or excavation, and that the defendant, its officers, agents, servants, or employees, either knew, or in the exercise of due diligence should have known, that said artificial hole or excavation was a place of great danger to plaintiff, and plaintiff further avers that on January 30, 1926, while on said premises by said invitation of said defendant, its officers, servants, agents, or employees, as such, the plaintiff slipped and fell into said artificial hole or excavation, and thereby suffered serious injuries." Thus is sufficiently stated the facts showing the duty in the premises of reasonable care on the owner to the end of avoiding injury to such invitee. It is the duty to be reasonably sure that one is not inviting the other into danger, and to avoid this one must exercise ordinary care and prudence to render and keep the premises in a reasonably safe condition for such visitor. Bennett v. L. N. R. Co., 102 U.S. 577, 580, 26 L.Ed. 235; Southern Ry. Co. v. Bates, 194 Ala. 78, 85, 69 So, 131, L.R.A. 1916A, 510.
In Thompson v. Alexander City Cotton Mills, 190 Ala. 184, 191, 67 So. 407, 410 (Ann. Cas. 1917A, 721), Thompson on Negligence, § 1030, is quoted with approval as follows:
" '(1) That, where the owner or occupier of grounds brings, or artificially creates something thereon, which, from its nature, is especially attractive to children, and which, at the same time, is dangerous to them, he is bound, in the exercise of social duty and the ordinary offices of humanity, to take reasonable pains to see that such dangerous things are so guarded that children will not be injured by coming in contact with them. (2) That, although the dangerous thing may not be what is termed an "attractive nuisance" (that is to say, may not have especial attraction for children by reason of their childish instincts), yet where it is so left exposed that they are likely to come in contact with it, and where their coming in contact with it is obviously dangerous to them, the person so exposing the dangerous thing should reasonably anticipate the injury that is likely to happen to them from its being so exposed, and is bound to take reasonable pains to guard it, so as to prevent injury to them.' "
This rule was also approved in Gandy v. Copeland, 204 Ala. 366, 370, 86 So. 3.
The pleader sought, in count 5, to set out the physical condition or alleged nuisance, and the quo modo of the invitation to be at the place where she was injured, and knowledge on defendant's part of the danger.
This averment of duty and the failure thereof and consequent injury is within the second class or category of liability given statement in Thompson v. Alexander City Cotton Mills, supra. It is no answer to the pleading that it showed that the excavation was "open and obvious." The child of three years of age could not comprehend the danger of going upon the bank of the averred artificial excavation so near its home. Though the same was obviously dangerous to an adult, and its condition open to view, yet this would not relieve him who created and maintained the artificial and dangerous thing or agency, and left it so exposed as that children invited there are likely to come in contact with it and be injured, as we have indicated in such a case, the person so exposing the dangerous thing, situation, or agency should reasonably anticipate the injury that is likely to happen to a child so exposed, at the place of invitation, and the duty in the premises is to take reasonable pains and precaution to guard against the danger to prevent injury to children so invited to its proximity and exposure.
The complaint was free from demurrers directed thereto. The use of the word "excation" in count 5 is self-explanatory when referred to the context and other statements of the count, and could but mean excavation. The proper word (excavation or ditch) was repeatedly used, and the pleading is so considered. It stated a cause of action, and the question of fact was for the jury.
The first exception to the oral charge that the inquiry of fact was limited to trespass vel non of plaintiff is not well founded, and the jury was not instructed affirmatively as to her being an invitee. If it were susceptible of being misunderstood, as argued by counsel, explanatory charge may have been requested. In the case of Thompson v. Alexander City Cotton Mills, supra, it was declared that the boy had departed from the place of invitation, and thereby became a mere licensee. This is also the effect of Athey v. T. C., I. Ry. Co., 191 Ala. 646, 68 So. 154, and Eades v. Amer. Cast Iron Pipe Co., 208 Ala. 556, 94 So. 593. There is no evidence that authorized a change as to duty in the premises to a mere licensee. And the trial court did well to limit the inquiry to that of invitation or trespass. And, leaving the inquiry to the jury of whether the plaintiff was an invitee, there was no error in that part of the oral charge made the basis of the fourth assignment of error.
The part of the oral charge made the basis of the sixth assignment of error was in accord to the view we have expressed, and the second class or statement of duty we have above quoted from the Thompson Case. There was no reference in the charge to an "attractive nuisance," and no assumption by the trial court that such nuisance was created, causing the injury as declared upon.
The court, by hypothesis, placed the burden on plaintiff to show the required or material elements of her right of recovery — that she was there by invitation, where defendant maintained a ditch or excavation that was dangerous in character, knew, or should have known, that children such as she was were likely to be exposed to that danger, and failed to exercise such reasonable care as an ordinary, reasonably prudent and careful person would exercise to prevent injury, and that defendant's failure of duty as to this was the proximate cause of the injury for which suit was brought. This correctly stated the burden of proof as to the several elements entering into the inquiry of facts submitted to the jury under the law.
If after allowing all reasonable presumptions in favor of the correctness of the verdict, the preponderance of the evidence is against the verdict, and is so decided as to induce the conviction that it is wrong and unjust, the new trial should be granted. N.C. St. L. Ry. Co. v. Crosby, 194 Ala. 338, 70 So. 7; Cudd v. Bentley, 204 Ala. 586, 87 So. 85; L. N. R. Co. v. Rush, 208 Ala. 516, 94 So. 577; Twinn Tree Lumber Co. v. Day, 181 Ala. 565, 61 So. 914. We have carefully considered the evidence, and given a careful reading to the testimony of Drs. Mason and Carraway, with that of J. A. Cosby as affecting her power of locomotion, that there is no permanent injury shown. The attending physician, Dr. Carraway, testified that the child had recovered, and he had dismissed her as "cured." And Dr. Mason says there is disfigurement by reason of a "slight bow" in the leg caused by her injury; that it is hard to say whether there will be a "permanent disfigurement from the standpoint of the naked eye"; thinks, if it be perceptible at all, it will be slight," as she grows older. Plaintiff's evidence showed that she suffered and wore a plaster cast about nine weeks, and that he incurred slight bills for hospital and transportation of the child thereto.
It is submitted and argued that the trial court committed reversible error in overruling the defendant's motion for a new trial. We have examined with care the evidence relating to the nature and extent of plaintiff's alleged disability and probabilities vel non of its permanence, and our judgment is that the judgment of $4,500 is excessive and within the rule. All things duly considered we think that $3,000 would be the proper compensation for plaintiff's injuries, suffering, and expense.
It is ordered that, unless plaintiff files with the clerk of this court a remittitur of the excess of $1,500 within 30 days hereafter, the judgment will be reversed, and the cause remanded for another trial. Birmingham Amusement Co. v. Norris (Ala. Sup.) 112 So. 633, 638. If, however, such a remittitur be duly entered, the judgment as thus reduced to $3,000, with interest, will be affirmed.
Affirmed conditionally.
ANDERSON, C. J., and SOMERVILLE and BROWN, JJ., concur.