Emond v. Kimberly-Clark Co.

The appeal presents the question of whether or not it was the duty of the defendant to fence the pond described in the complaint. Fairly construed the failure to fence or guard it is the only negligence alleged. Upon the oral argument it was claimed by plaintiffs’ counsel that the ' allegation that the pond, dam, and overflow gate were allowed to remain in an unsafe condition was the assertion of a breach of duty additional to the duty to fence or guard. If such a meaning can be gathered from the allegation it adds nothing to the complaint, for in the 'absence of an averment stating in what such unsafety consisted it is but the allegation of a conclusion to be drawn from facts. To allege that a thing is unsafe without specifying how or why it is unsafe is tantamount to an allegation that a person is negligent without stating the facts constituting the negligence. It is for the pleader to state the facts showing a want of safety or negligence, and it is for the court or jury to draw the conclusion that a thing is safe or unsafe or a person is negligent or not from the facts pleaded or in evidence. The facts upon which the negligence or unsafe condition are predicated should be pleaded and not the conclusion to be drawn therefrom. So vre are limited to a consideration of the facts averred, namely, the failure to fence, in passing upon the sufficiency of the complaint.

*87Stripped of verbiage describing the attractiveness of the pond to children, we have a body of water forty feet long and thirty feet wide situated upon defendant’s land', with one end adjacent to a highway and the other eiid remote from the highway containing the dam and overflow gate or spill. There is nothing peculiar either in size, construction, or location of the pond. Hundreds of bodies of water both larger and smaller and equally attractive dot the whole state. And they take their toll of human life, especially of children, both in winter and summer. Ent it has not yet been deemed to be the duty of the owners thereof to fence or barricade them so as to exclude the public therefrom. Bodies of water like the one in question either natural or constructed by a dam or otherwise are useful and lawful objects whether located wholly within private lands or adjacent to a highway. Their usefulness would often be seriously interfered with if not entirely destroyed by a fence; especially so of ponds located on farms where they furnish water for stock. Generally speaking it is true, as stated in defendant’s brief, that every drop of water except that in the washbowl is attractive to children, and it is also true that all bodies of water deep enough to drown a child and situated within roving distance of children present a danger from which an injury to some person or death may reasonably be anticipated. But it does not follow from such fact that a duty on the part of the owner to fence or guard springs therefrom. There are many useful, lawful structirres and objects of which the same is true. One having a grove of trees, especially be they nut-bearing trees, may reasonably anticipate that a boy may climb one and be injured. Such occurrences are by no means rare. But would any one claim that he must fence or guard his trees lest an injury to a child might result? The difference between an attractive lawful object and an attractive nuisance must not be overlooked.

A certain amount of danger apparent to the mature mind inheres in the very existence of many useful objects both nat*88ural and artificial that surround our daily life. When the risk resulting from their use or existence is no greater than is reasonably necessary for their proper enjoyment by the owner, it is one we must assume as a condition of living. All efforts to minimize danger are commendable. But in so far as they are compulsory they must remain within the realm of what is fairly reasonable, and that is especially true of duties owing to trespassers. As to them, useful or lawful structures or objects'upon one’s own land may in the absence of active negligence at the time of the injury be maintained and used in the customary manner in which they have been in the past, provided such maintenance and use is not so obviously dangerous as to partake of the nature of gross negligence. Zartner v. George, 156 Wis. 131, 145 N. W. 971.

The world cannot be made danger-proof — especially to children. To require all natural or artificial streams or ponds so located as to endanger the safety of children to be fenced or guarded would in the ordinary settled community practically include all streams and ponds — be they in public parks or upon private soil, — for children are self-constituted licensees if not trespassers everywhere. And to construct a boy-proof fence at a reasonable cost would tax the inventive genius of an Edison. Heretofore it has been the judgment of this court that, in the absence of special danger or peculiar circumstances, there is no breach of duty to the public in leaving txnfenced a pond of water located on private property. The attractiveness of the water or its nearness to a public highway does not take it out of the rule. Klix v. Nieman, 68 Wis. 271, 32 N. W. 223. The conclusion reached in that case is adhered to. It is alleged that the boy fell in while on the dam. So he had left the highway and traveled some forty feet before he fell into the water. Were the pond so located as to endanger the safety of children using the highway as were the block and tackle in Kelly v. Southern Wis. R. Co. 152 Wis. 328, 140 N. W. 60; or were it a hidden death-deal*89ing trap like the electric wires in Meyer v. Menominee & M. L. & T. Co. 151 Wis. 279, 138 N. W. 1008; or an obscured pitfall in a licensed pathway as in Brinilson v. C. & N. W. R. Co. 144 Wis. 614, 129 N. W. 664, a different rule would apply. Here we have nothing hut a body of water in an ordinary state, such as it is often left in by nature, and, though attractive to children, there was no duty to fence it. The demurrer was properly sustained.

By the Gourt. — 'Judgment affirmed.