DISSENTING OPINION Courts, in declaring the common law, of necessity lag behind the collective sentiment and judgment of the people in the establishment of duties, rights and remedies. This delay is desirable from the *Page 523 standpoint of the stability of the law.1 But when a decision and the reasoning to sustain it retrogresses to the laissezfaire philosophy of the Industrial Revolution, an appeal by way of dissent should be made "to the brooding spirit of the law, to the intelligence of a future day." Hughes, The Supreme Court ofthe United States (1947 Edition), p. 68.
It will not be necessary to make an extended examination of the cases, since my brother Gilkison has given exhaustive review of the authorities and the history of *Page 524 the doctrine of attractive nuisance. Before the anomalous dicta in Anderson v. Reith-Riley Const. Co. (1942),112 Ind. App. 170, 44 N.E.2d 184, and the ubiquitous reasoning in City ofEvansville v. Blue (1937), 212 Ind. 130, 8 N.E.2d 224, there was no doubt that Indiana clearly permitted recovery on the doctrine. Until the decision in this appeal, the latest precedent was Borinstein, et al. v. Hansbrough (1948),119 Ind. App. 134, 82 N.E.2d 266. We denied transfer in this case, not on any defective petition to transfer, but on the merits. I am unable to perceive any material difference in the force generated by a pile of junk in the Borinstein case, and a pile of sand in the Anderson case, although the sand caused death while the junk only caused a crushed ankle. The result in the City of Evansville case was correct, since the city swimming pool was guarded by two lifeguards who were not shown to be guilty of any negligence, and there was no evidence to establish how long the decedent "was under the water, or when, and how, he was drowned." (Page 143.) But the error in the City of Evansville case lies in the statement made, that as a matter of law, children are guilty of contributory negligence in venturing near deep water. Such contributory negligence is a question for the jury. The gratuitous dicta in the Anderson case with reference to artificial bodies of water is equally fallacious.
The reasoning that there should be no difference, in determining non-liability, between a natural body of water and an artificially created body of water is wholly specious from the standpoint of causation, as well as human experience. The act of God creates a natural body of water, and from common experience we know that society, from the first settlement, accommodates itself and builds with reference to the existing conditions for which no man is responsible. But when man *Page 525 acts affirmatively the general rule is he must use due care under the circumstances to avoid injuring others.
"A long and firmly settled principle of law which has grown out of a well ordered civil society is that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it may be so regulated that it shall neither encroach injuriously on the equal enjoyment of their property by others who have an equal right to the enjoyment of their property, nor be injurious to the community."Pittsburgh, etc., R. Co. v. Chappell (1914), 183 Ind. 141, 146, 147, 106 N.E. 403. The same principle extends to personal injuries. 45 C.J. 763, § 159.
It is for this court, after a full consideration and the balancing of the interests of property owners, the injured children and society, to determine as a matter of public policy what duty the land owners have to young children who may be technically trespassing. We would be blind to what we see in our everyday life if we did not realize the same rules should not apply to children that apply to adults. It is one thing to say that children may know danger, but it certainly does not follow that they appreciate or evaluate the danger.
It is a misdemeanor to pass a school bus when loading or unloading children. The school bus must have special signalling equipment. We constantly see the most elaborate precautions taken by means of special police officers, school patrols, stop signals and school zone signs, to afford safety to the marching lines of children crossing the public highways in Indianapolis going to and from school. Why? Because we know from years of experience that children are venturesome, playful, unattentive to danger and generally possessed of exuberant energy which expresses itself in countless ways *Page 526 which involve a greater or lesser degree of danger. Nor would we if we could suppress their energies and make them old before their time. Their good health is their foundation for a productive life as adults. It is better for society to adjust itself to their nature than that we refuse protection for their life and limb. A primitive policy of survival of the fittest would not insure that only fit children survive in modern society — only the weak and the lucky would do that.
Should John Doe, who has the fee simple title to real estate adjoining a large grade school, be permitted to create a huge excavation within fifty yards of the school, with an uneven bottom so that it accumulates water in varying depth, and be under no duty to use due care to guard the excavation against boys of eleven years of age who would be attracted by the water on a hot day in June? My concept of the rights of private property does not include the laissez faire premise that the owner has no affirmative duty to use due care to protect the children. Nor is there any essential difference between such a case and the facts in this appeal.
To put such a duty in this case on the land owner would not place the same duty on every owner who creates an artificial body of water. The owner here was not under any public duty to create the risk, such as might exist in a much lesser degree in a water reservoir created by some municipality or water company. Nor would it be a holding that every farmer who creates a pond or lake for utility or conservation behind his own fences, nor even the land owner who may otherwise create an unguarded artificial body of water in the countryside, be under the same duties as the owner in a populous city such as Hammond. The strength of the common law has always been that it decides cases as they arise upon the facts presented, and such cases should be left for decision when they arise. *Page 527
Certainly the interest of society and of the safety of children have not been served by denying a recovery on the admitted facts in this record. As suggested by my brother Gilkison, I do not believe the majority rule will long be the law of this jurisdiction.
1 "That this development should be slow, is not only natural, but desirable. To the writer it appears essential that courts of law should act as the final brake upon extremes of popular opinion and should protect the public from their own temporary following after the false gods of extreme sentimentalism and fashionable theorism. It appears essential that they should not yield to new ideas until time has proved their permanence and their real place as a part of the fixed and settled national conviction, until they are seen to be a permanent habit of national thought. None the less, while they should not yield to mere popular hysteria, it would appear that they should not over-rigidly adhere to obsolete methods of thought. The great merit of the common law lies in its flexibility, and this flexibility exhibits itself, not merely in its ability to adapt old conceptions to new facts, but to absorb and apply what is settled and permanent in economic and ethical ideas. . . . While not arguing for the immediate legal recognition of humanitarian duties it should not be forgotten that a system of law which lags too far behind the universally received conceptions of abstract justice, in the end must lose the sympathy, the confidence, perhaps even the respect of the community. . . .
"While courts of law should not yield to every passing current of popular thought, nonetheless, it appears inevitable that unless they adopt as legal those popular standards which they themselves, as men, regard as just and socially practicable, but which, as judges, they refuse to recognize solely because they are not the standards of the past of Brian, of Rolle, of Fineux, and of Coke; they will more and more lose their distinctive common law character as part of the machinery whereby free men do justice among themselves." Bohlen, Studies in the Law of Torts (1926 Ed.), pp. 341, 342, 343.