The plaintiff's intestate, a boy about 9 years old, was drowned while bathing in a pool of water on the railroad right of way. The *Page 33 pool was a widened and deepened portion of a stream that ran through a 3-foot culvert, under an embankment supporting the track, some 15 feet high. In times of heavy rains the surface water of the drainage area of the stream above the railroad accumulated to such an extent that the culvert was insufficient to carry it off promptly. It accordingly was ponded at that point, and rose about halfway up the embankment. The "head" of water thus created forced it through the culvert with such pressure and volume that the water that was discharged from the lower end of the culvert washed out the bed of the stream, forming a pool there of considerable size, some 50 feet in length, 22 feet wide at the widest part, and in depth from six inches to five feet. In usual weather conditions the pool disappears, is filled with sand; and only by heavy rains or freshets is the condition described created.
The theory of the complaint is that the pool was located "in or near the thickly populated settlement of the Lydia Cotton Mill Village," at a point where it was easily accessible to children, ignorant of its danger, who were attracted to it by the "drawings strong" of a wash hole, and that it was not protected by a fence or guard to prevent or at least warn children from yielding to the allurement. The cause of action, therefore, is based upon what has come to be known as the doctrine of an "attractive nuisance."
It is important, therefore, to describe the location and environments of the alleged attractive nuisance, bearing in mind the general principle that a man has the right to make such use of his own property as he pleases, provided such use is not incompatible with the reasonable rights of others (sic utere tuo ut alienum non laedas), and that the burden of coming within this exception is upon the plaintiff.
The location of the pool: The small stream is located between the town of Clinton and the station of the cotton mill known as Lydia; it is beyond the corporate limits of *Page 34 Clinton, which extend a mile and a quarter from the center of the town, and from a quarter to a half mile from the station of Lydia; it heads about a mile above the railroad, on the west side, passes under the fill, and through a pasture of an adjoining owner, on both sides, for about a mile; a wire fence, inclosing the pasture, crosses the stream at right angles, parallel with the track, about 30 feet from the eastern end of the culvert, outside of the right of way, and incloses in the pasture about one-third of the pool; between the stream and the town of Clinton, on the eastern side of the railroad, are cultivated fields, as there are also on the other side of the stream for a considerable distance; on the upper side of the railroad, for several hundred yards, on both sides of the stream, the land was cultivated in corn; outside of the pasture, and about 50 yards from the end of the culvert, is a negro house, occupied by one Simpson; almost directly across the railroad from Simpson's house is another house occupied by a colored woman; a main public highway leads from Clinton to Lydia Mills, on the upper side of the railroad, and crosses the stream some 300 or 400 yards above the fill; on both sides of this road, a continuation of Bell street (in the town of Clinton), there are 8 or 10 negro houses, half a mile from the pool; on the south side of the stream, on the upper side of the railroad, and between the fill and the Lydia Mill Village, is a house occupied by one Brewington, about 200 yards from the pool; one standing on the fill can see 9 dwelling houses, all within a radius of a quarter of a mile of the pool, and all on the upper side of the railroad except Simpson's; the mill building is half a mile from the fill; the nearest operative's house, on the opposite side of the fill from the pool, is about a quarter of a mile away; the boy who was drowned lived with his father at Clinton Cotton Mills, in the town of Clinton, at least a mile from the pool; there was no playground in the immediate locality, no baseball grounds, tennis *Page 35 court, or apparatus for the amusement of children; the sides of the fill were covered with vines, weeds and grass; there is no road, street, path, or public place of any kind on the side of the track where the pool was; in reaching it one must travel along the railroad or through cultivated fields, and enter at the gate near Simpson's house.
The character of the pool: It was not a place maintained purposely by the railroad company, as a reservoir at a mill would be; it was a fortuitous condition, caused by heavy rains, and the insufficiency of the culvert to carry off the ponded water above the fill promptly; under ordinary conditions it would be filled with sand, only to be blown out at the next heavy rain; one of the witnesses for the plaintiff testified that there was a big rain the day before the boy was drowned, and that the stream had blown out then; that this was the first time he had seen it blown out since he had been living there, in 200 yards of the pool, for two years; it was 52 feet long, 22 feet wide at the widest part, and from 6 inches to 5 feet deep; one-third of its length was inside of Leake's pasture, and the remainder on the right of way; that it was dangerous is established by the fatality that overtook the boy, but not more so than thousands of similar places on thousands of farms in this country.
The circumstances of the fatality: On the 28th of July, 1919, young Henry Renno, a bright, attractive and intelligent boy of 9 years, living at least a mile from the pool, in the town of Clinton, with five companions went to the pool to go in bathing; only one of the six could swim; they approached the pool from the pasture, climbing through the three-strand barbed wire fence which crossed the stream at a point above one-third of the length of the pool; from the fence to the lower end of the pool the water was not more than 2 1/2 feet deep; one of his companions told him not to go in, and particularly warned him not to go into *Page 36 the deep part next to the culvert; another told him if he went in to go down to the shallow part below the fence; he could not swim, but, instead of following the advice of his companions, stepped off the bank into the deepest water and was drowned.
The attractiveness of the pool: It is but speaking to the common experience of every man who is blessed with the memories of his youth to recall that nothing in the range of youthful amusements possesses the allurements of the "wash hole" to the small boy, shedding his scant raiment as he runs to plunge into its cooling waters. (It is a strange contradiction of his nature that he suffers from "hydrophobia" as to every other form of ablution). The allurement is so universal and so irresistible, and appeals so strongly to those who remember happier days, that it would be churlish in the extreme to fence in and run the youthful depredators out of every "hole" that chanced to be deeper than the small boy's well-known standard. It surmounts every obstacle of dog, bull, or fence, and would require the presence of guards at every place, whether natural channel or fortuitous creation, on farm or right of way, deep enough to drown a boy. As is said in the case ofSullivan v. Huidekoper, 27 App. D.C., 154, 5 L.R.A. (N.S.), 263, 7 Ann. Cas., 196:
"To hold landowners responsible under such circumstances would be to impose upon them an oppressive burden, and shift the care of the children from parents to strangers. Every man who has been brought up with the freedom allowed to American boys knows that you might as well try to dam the Nile with bullrushes as to keep boys away from ponds, pools, and other bodies of water."
The test of negligence, as has been often declared by this Court, in the language of CHIEF JUSTICE GIBSON of Pennsylvania, is that precaution becomes a duty only where there is a reasonable ground to apprehend danger. Where thousands *Page 37 of boys all over the country engage in this amusement without injury, it cannot with reason be urged that there was in this case ground for apprehension and consequent precaution.
This case cannot be brought within the doctrine of the "turntable" and "reservoir" cases decided by this Court and others, which are unquestioned, for several reasons: (1) They contemplate the construction and maintenance of some dangerous instrumentality or condition for the purposes of the proprietor of the premises; not a fortuitous condition created without design. (2) They are places of unquestionable danger, within the knowledge of the proprietor, where boys were accustomed and known to exercise their youthful instincts of curiosity and amusement. (3) They are places located on or near a public place, park, street, playground, or other place open to the view of idling boys, and by the sight of them constitute an allurement. (4) They are places which with slight attention could have been made safe against the depredations.
In the Bridger Case, 25 S.C. 24, the child was 12 years old, and was injured while playing on a turntable located in an open common near the highway where the boys of Hendersonville were accustomed to play, and the turntable was not fenced or guarded or locked or secure when not in use, but was negligently left exposed and accessible to children who, not knowing the danger, made use of it as a means of amusement. This case followed the United States Supreme Court case of Sioux City R.R. v. Stout, 17 Wall., 657; 21 L.Ed., 745. In the latter case great stress was laid upon the facility with which the turntable could have been securely locked.
The case of Franks v. Cotton Oil Co., 78 S.C. 10;58 S.E., 960, 12 L.R.A., (N.S.), 468, was where the father of a 7 1/2 year old boy was allowed to recover for his death caused by drowning in an artificial reservoir constructed of *Page 38 brick and cement, maintained by the oil mill for the use in its business, in an open field, near the public streets, and many residences of the city of Laurens where children of tender years, to the knowledge of the corporation, were accustomed to resort for play. Two residence streets of the city of Laurens pass close by this reservoir which was not protected by a fence, guard or otherwise. It was kept filled with water. The children of the community — it being practically in the Laurens Cotton Mill Village — resorted there as a place of amusement, which facts were well known to the manager of the oil company.
In case of Hayes v. Power Co., 95 S.C. 230,78 S.E., 956, the evidence showed that the power company built a house on the premises of a cotton mill for transforming electric power for the mill; that a window was left open on the day on which the plaintiff, a 9 year old boy, was seriously injured, and that he reached his hand through the window and touched heavily charged electric wires. This dangerous instrumentality was located in a mill village. In and about the transformer house children of tender years, who were ignorant of the hidden or latent danger, were accustomed to play. The windows of the house were open and unprotected. The transformer house was near a school building. It contained three windows. No warning had been given the children not to play around the house. The boy was injured during the noon recess of the school. He climbed up into the window, put his hand through the window and touched the wires.
The case of Sexton v. Construction Co., 108 S.C. 522;95 S.E., 129, was where a young child was injured by coming in contact with melted asphalt. The melting pot containing the asphalt was on a vacant lot near South Church street, one of the principal residence streets of the city of Spartanburg, at a place where young children were accustomed to play. On the vacant lot was a pile of sand about *Page 39 which the children played. Children frequently passed the pot containing the asphalt, which was about 100 feet distant from the sand pile. No recovery was allowed in this case; the defective faucet or pipe out of which the asphalt was allowed to flow was held not to be the direct and proximate cause of the plaintiff's injury.
In the case of McLendon v. Cotton Mills, 109 S.C. 240;95 S.E., 781, it appears that the plaintiff's intestate was a child nearly 7 years old, who was drowned in an artificial reservoir located in the mill village near which the child's parents lived. This reservoir was surrounded by a fence 4 or 5 feet high, built of farm wire, with meshes about 3 inches in size at the bottom, and increasing in size to the top. A wide plank served as a baseboard, and a 2x4 scantling for a top rail. The fence was on the top of a sloping embankment 6 or 8 feet high, which constituted the retaining wall of the reservoir. The wire had broken loose from one of the posts, and made it easy to get over the fence. There was a hole in the bottom of the fence at another place large enough for a boy to go through. The gate to the fence was usually kept shut and fastened, but was occasionally found open. These omissions, conceded to be negligence, were not the cause of the injury. The boy climbed over the fence where it was in good condition.
This expression in the latter case is significant:
"It is not necessary now to decide whether the rule in the Frank 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."
The Court held that a nonsuit should have been granted.
In the Tucker case, 95 S.C. 302; 78 S.E., 890, and96 S.C. 466; 81 S.E., 182; the injured child was about 14 years old, and was drowned in an artificial dam or reservoir maintained in an unprotected condition by the Clinton Cotton Mills, near the public streets, and many of the residences *Page 40 of the town of Clinton — in fact in the heart of the mill village — where children were accustomed to resort for play, to the knowledge of the cotton mill, and after the danger had been repeatedly called to the attention of the officers.
The Frank case cited above is the leading case on this doctrine in this state, and an examination of the authorities cited by Mr. Chief Justice Gary, who wrote the opinion in that case, shows that in every instance the dangerous instrumentality, agency, or condition was located in or near or adjacent to a public place, street, or part, and that such location and the nature of the agency was such as to charge the owner with knowledge and notice of the perils and dangers to children of tender years.
The elements of liability which were prominent in each of the cases above cited, where a recovery was allowed, are absent in this case. The McLendon case clearly shows that the tendency of this Court is to limit, rather than extend, the application of the doctrine. This is the tendency of many of the Courts of this country. 20 R.C.L., p. 81;Mayfield Water Co. v. Webb, 129 Ky., 395;111 S.W., 712; 18 L.R.A. (N.S.), 179; 130 Am. St. Rep., 469;Dahl v. Dredging Co., 125 Minn., 90; 145 N.W., 796; 52 L.R.A. (N.S.), 1173; Barnhardt v. C.M. St. P. Ry.;89 Wn., 304; 154 Pac., 441; L.R.A., 1916D, 443; 12 N.C.C.A., 966, and note; Bottum's Adm'r v. Hawks,84 Vt., 370; 79 Atl., 858; 35 L.R.A. (N.S.), 440; Ann. Cas., 1913A, 1025.
In Stendal v. Boyd, 67 Minn., 279; 69 N.W., 899; the Court said:
"We do not extend [the doctrine] to an ordinary case of a landowner merely allowing a pool or pond of water to stand on a vacant lot."
See note on 19 L.R.A., (N.S.), 1098; Dobbins v. M.K. T.R.R. Co., 91 Tex. 63; 41 S.W. 62; 38 L.R.A., 573; *Page 41 66 Am. St. Rep, 859; Ryan v. Towar, 128 Mich., 463;87 N.W., 644; 55 L.R.A., 310; 92 Am. St. Rep., 481;Cooper v. Overton, 102 Tenn., 211; 52 S.W. 183; 45 L.R.A., 591; 73 Am. St. Rep., 864; Tavis v. Kansas City,89 Kan. 547; 132 Pac., 185, which was a case where a boy was drowned in a pool of a creek immediately below a culvert which the city had constructed in a street. The pool was formed on the property of a private owner over which the city had no control, and it did not appear that any officer of the city knew of its existence. It was unfenced and unguarded. The Court held that the case did not come within the attractive nuisance doctrine. In Somerfield v. Land Power Co., 93 Kan., 762; 145 Pac., 893, a canal carrying a stream of water 7 feet deep through a populous city, along the bank of which the public passes and children gather to play, fish, and swim, in which a young child fell and was drowned, was held not to be within the doctrine of the turntable cases. The Court held that the canal, having the character of a natural stream, could not more be regarded as an attractive nuisance than could a river flowing through the city or a pond or a lake therein. In the case of Harper v.City of Topeka, 92 Kan., 11; 139 Pac., 1018; 51 L.R.A. (N.S.), 1032, it was held that a pond in a city park which was substantially the reproduction of a natural pond, although attractive to children, did not come within the rule of the attractive nuisance doctrine.
See, also, Sullivan v. Huidekoper, 27 App. D.C., 154; 5 L.R.A. (N.S.), 263; 7 Ann. Cas., 196; Thompson v. Ill.Central, 105 Miss., 636; 63 South., 185; 47 L.R.A. (N.S.), 1101.
This whole subject is well discussed in 20 L.R.C., pp. 79 to 98.
The testimony shows that the pool was not an artificially constructed reservoir, but the accidental result of the forces of Nature. Assume that it was created by the faulty construction *Page 42 of the culvert; that could in no sense have been the proximate cause of the catastrophe. It shows that the danger was not of such exceptional character as to have created an obligation on the part of the railroad company to guard it; it shows that the pool was located on the opposite side of a high fill from the mill village, in an isolated place, where it lacked the allurement caused by a conspicuous location, and where the allurement was presented only to those who deliberately sought out the attraction. The boy was not a resident of the immediate locality, but had to travel at least a mile, over cultivated land, and over a fence, to get to the pool. It would have been practically impossible to fence it against the depredations of boys intent on such amusement. It is essentially different in its nature from a reservoir which is of uniform dangerous depth at all points. The testimony shows that the pool varied from 6 inches to 5 feet in depth, and, if the proprietor knew that small boys were accustomed to bathe there, he could naturally have presumed that the smaller boys would do what young Henry's companion told him to do stay in the shallow water.
The judgment of this Court is that the judgment of the Circuit Court be reversed, and that the case be remanded to that Court, with instructions to direct a verdict for the defendant.
MR. JUSTICE FRASER and SHIPP, RICE, BOWMAN, PEURIFOY, and McIVER, Circuit Judges, concur.