Epitomized Opinion

Published Only in Ohio Law Abstract

The Cemetery Association maintained an artificial pond on its premises about 5 feet distant from an alley which had been in existence for many years. Along this alley it had constructed a tight board fence upon which a board had been removed, leaving an opening through which a child crawled and was drowned in the pond. Suit was brought in the Montgomery Common Pleas to recover for wrongful death, resulting in a judgment for the Association. To reverse this judgment error was brought in the Court of Appeals, which held:

An ordinance of the City of Dayton makes it the duty of every person erecting any building, or making any improvement on or near any sidewalk, street or alley in the city, whereby an excavation is made, or material accumulated, to place around the same a substantial rail or guard which will prevent any danger from accidents. The plaintiff below sought to introduce this ordinance in evidence,. but the court excluded it, holding that it was intended to apply to temporary constructions only, and even if the ordinance did apply it was not violated, as the fence rails constituted guards within its meaning.

The law of attractive nuisances as to children has been settled in this State and we think the trial court followed the decision of the Supreme Court in its charge to the jury and in its ruling throughout the trial and the judgment will be affirmed.