Banker v. McLaughlin

dissenting.

I cannot agree with the majority opinion allowing a recovery against the petitioner Banker under the attractive-nuisance doctrine for the drowning of respondent’s five-year-old son. In my judgment, the holding is squarely in conflict with prior decisions of this court and is against the overwhelming weight of authority of other jurisdictions. To demonstrate my position, it is necessary to make an additional statement which will include some very material facts which were omitted from the majority opinion.

To get the true picture of the situation, it should be stated at the outset that the addition where the drowning occurred, and the whole surrounding territory, is a low, swampy, woody, brushy, coastal country, filled with water holes, pits, ditches, reservoirs, ponds and pools, both natural and artificial. The pit or pool in which the little McLaughlin boy drowned was one of the water holes in this territory which had been made some few months prior to the drowning by scraping and hauling out the dirt therefrom with which some of the streets of the addition were improved for the benefit of its inhabitants. It is located on Lot 10 of Block 7 of the Forest Park Addition, which is about the middle of the block both north and south and east and west. To visualize the local setting, I call particular attention to the plat attached hereto. The plat, of course, is greatly reduced in size from the original, and the scale is thus inaccurate. However, the true distances may be seen from the length and breadth of the lots and streets indicated on the plat.

McLaughlin’s home was situated on Lots 15 and Í6 of Block 1, some 300 or 350 yards from the pool. The addition is about *448 two blocks from the Port Arthur-Orange Highway and is adjacent on the west to what is known as the Old Shell Road or *449 Old Highway 87. It is a rural subdivision nine miles from Port Arthur, the nearest town. Most of the fifty homes in the addition were situated in Blocks 1 and 2, facing the Old Shell Road. There were no houses or other improvements in Block 7, and that block was open, undeveloped, pasture land, grown up with tall bushes, shrubs, weeds and grass. None of its lots were sold or were being offered for sale at the time of the drowning. In Block 6 there were only three houses, and they faced on Holly Street. One was situated on Lots 7 and 8 and another on Lots 9 and 10. A third was north of these two but its exact location was not shown. The one on Lots 9 and 10 was the nearest house to the pool in the whole addition, and it was some 700 feet away. The majority opinion leaves the impression that the closest house to the pool was “about 150 or 200 feet.” That was at the time o'f the trial; but no house was that near .at the time of the drowning, which is the only time here involved. There were also no houses in Block 5. Gum Street, which runs in front of Block 7 where the pond was situated, was unimproved and there was no travel upon it. The south end of it was closed up by a fence. Only the west half of Oak Street was improved. The pond was thus located in an isolated portion of the subdivision. The only approach to it was a dim trail made several months before by trucks hauling out dirt from the excavation. In the meantime this abandoned road had grown up in weeds and grass. It was certainly no invitation for travel. There were many trees between the pool and McLaughlin’s house. The pool itself was in the middle of Lot 10, which lot the plat shows was 396 feet long. The nearest edge of the pool was therefore about 150 feet from Gum Street, and the pool was surrounded by shrubbery, bushes, tall weeds and grass. Even McLaughlin admitted, and all the testimony showed, that it could not be seen from Gum Street where, as above stated, there was no traffic. McLaughlin stated “that if a person didn’t know the hole was back there they couldn’t see'it from the road • at all.” Its view was screened by trees and bushes from any of the traveled or inhabited portions of the addition. Thus we are not dealing with an open and visible pool near a traveled roadway, but one entirely secluded from the public view.

*448