Opinion
(Filed 1 May, 1940.)
Negligence § 4a — Complaint held insufficient to allege actionable negligence in maintenance of pond by defendant manufacturing company.
Allegations that defendant maintained a pond in connection with its manufacturing business, that intestate, seventeen years of age, drowned therein when he stepped into a deep hole while wading to recover some ducks, and that defendant was negligent in failing to warn of the unevenness of the bottom of the pond and in increasing the danger by discharging hot water containing oil or grease in the pond, without allegation or contention that the pond constituted an attractive nuisance, held insufficient to state a cause of actionable negligence proximately causing intestate's death.
APPEAL by plaintiff from Sink, J., at January Term, 1940, of GASTON. Affirmed.
S. J. Durham and J. A. Wilkins for plaintiff.
J. Laurence Jones and Ernest R. Warren for defendant.
This was an action to recover damages for wrongful death of plaintiff's intestate. The plaintiff alleged in his complaint, in substance, that the defendant constructed near its mill, and in or near the mill village, a pond or reservoir for purposes in connection with its manufacturing business, and that the bottom of the pond was uneven, some portions as covered by water being deeper than others; that the defendant discharged into the pond from its engines hot water containing oil or grease; that plaintiff's intestate, a young man aged seventeen years, who lived in the mill village and the members of whose family worked in the mill, in the attempt to rescue some ducks owned by members of his family, which said ducks "were swimming deeper and deeper in the water and appeared to be in imminent danger of loss," went into the water and stepped into a deep hole and, though a good swimmer, was drowned. Plaintiff alleges that defendant was negligent in maintaining the pond without warning or notice of the depressions therein, and that it added to the danger by discharging into the pond hot water containing oil or grease. There was no allegation or contention that the pond was an attractive nuisance.
Defendant's demurrer ore tenus was sustained and the action dismissed. We agree with the court below that the complaint fails to set out a cause of actionable negligence proximately causing the unfortunate death of the plaintiff's intestate.
The judgment sustaining the demurrer is
Affirmed.