Banker v. Mclaughlin

208 S.W.2d 843 (1948)

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Nature of the Case

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Facts

P's minor son was five years and ten months old. The child drowned in a large hole, or pit, of water on Forest Park Subdivision, a homesite addition which D, the owner, at that time and since was in the process of developing and marketing. P claimed that the digging of the hole by D made the spot (when the hole filled with water) especially attractive to children, and dangerous. At the time the child was drowned, about 50 families (40 of which had small children) were living in Forest Park Subdivision; and numerous children were living in contiguous group settlements. D took no precautions whatsoever to prevent children of immature years from playing about or swimming in said pit or hole. P sued D. D claimed that the child was neither a licensee nor an invitee but was a trespasser and that the drowning was an accident. D alleged contributory negligence on the part of both P and the child. D claimed that the pool of water was not different from any other, and held no hidden danger; that the child was negligent in entering it, 'the water in itself being sufficient notice to him not to enter'; that the child was negligent in that he had been warned by other children that he was too small to swim there'; that P 'was negligent in allowing his child of that age to wander about the neighborhood unattended' and 'in not keeping the child at home'; and 'in not keeping the child away from the pool of water; and 'in not warning the child of the dangers * * *.' The jury found that the premises (while especially attractive to children) were dangerous to children. It found that D knew or should have known, that children played about and swam in the pit. It held that D was negligent in failing to enclose it prior to June 19, 1945, and in failing to fill it up, or drain it, within a reasonable time; and that these acts of negligence were proximate causes, respectively, of the child's death. It found that D was not guilty of contributory negligence in not keeping the child away from the pool. D appealed and the appeals court ordered remittitur. D appealed.