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Action for damages. Chatham Superior Court. Before Judge McWhorter.
1. (a) The defendant Starland Dairies, Inc. assigns error only on the overruling of its general demurrer to a petition alleging that the plaintiff, a two and a half year old child, sustained described injuries resulting from defendant's negligence in leaving a horse-drawn milk wagon, located on a utility road serving apartment houses, unattended with children, including the plaintiff, playing on and around it. The infant plaintiff climbed into the open wagon, was thrown out when the horse jerked the wagon forward, and was run over by the rear wheel of the vehicle. The defendant strongly contends that the action is based on the attractive nuisance doctrine, and, as such, fails to state a cause of action. It is interesting to note that Lynch v. Nurdin, 1 QB 30, 41 ECL 422, 113 Reprint 1041, which case is credited in 65 CJS 455, 29 (1) with originating the attractive nuisance doctrine, involved an identical set of facts. The court there held that should it appear that the horse and wagon were left deserted in a spot where "large parties of young children might be reasonably expected to resort . . . it would be hard to say that a case of gross negligence was not fully established." The petition in this case alleges that it was the custom of the driver of the milk wagon to allow the neighborhood children to gather around the horse and to get in and out of the wagon while he went to deliver milk, and negligence is also assigned upon his custom of permitting the children to do so.
(b) The first application of the attractive nuisance doctrine in Georgia probably occurs in Ferguson v. Columbus &c. Railway, 77 Ga. 102, which involved a turntable, and it has frequently been stated since that the doctrine will not be extended to cases which on their facts do not come strictly and fully within the principle there expressed. Manos v. Myers-Miller Furniture Co., 32 Ga. App. 644, 646 (124 SE 357); Haley Motor Co. v. Boynton, 40 Ga. App. 675 (150 SE 862); Martin v. Seaboard Air Line Ry. Co., 101 Ga. App. 819 (3) (115 SE2d 248); Anderson v. B. F. Goodrich Co., 103 Ga. App. 453 (2) (119 SE2d 603). The function of the so-called turntable doctrine is to remove an infant trespasser from the law applicable to trespassers generally, which is that the owner of land has no duty to keep his premises safe as to them, by indulging in the legal fiction that the attractiveness of the instrumentality to the child constitutes an implied invitation to him to come on the premises and thereby raises the owner's duty to the exercise of ordinary care to avoid injuring him. Southern Cotton Oil Co. v. Pierce, 145 Ga. 130 (88 SE67 2). It only comprehends instrumentalities "inherently dangerous, as well as attractive, to the finder, such as weapons, explosives, turntables, or objects of that type, which are not commonplace." Southern Bell Tel. &c. Co. v. Brackin, 215 Ga. 225, 227 (3) (109 SE2d 782). Horses are certainly less common now than they were in the day of Lynch v. Nurdin, supra. However, whether or not a horse-drawn wagon can still fit into the category of attractive nuisances need not be decided here, for in the first place it is not alleged that the plaintiff was a trespasser, the facts alleged showing that she was a licensee playing about the wagon with the actual knowledge of the defendant's employee who customarily permitted such activities, and in the second place the petition contains no allegation that the horse and wagon was such an instrumentality as to prove inordinately tempting or enticing to children to come and play on it. We agree with the learned trial judge that the action is not based upon the so-called attractive nuisance doctrine.
There was no error in overruling the general demurrer to the petition.
William F. Braziel, contra.
Kirk McAlpin, Frank W. Seiler, for plaintiff in error.
Friday May 22 23:09 EDT

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