Peters

This action was brought by plaintiff to recover damages for the death of his infant son, who was drowned in a pond of water upon a lot of land owned by the defendant, Bowman. The jury returned a verdict for the defendant; and the plaintiff appeals from the judgment, and from an order denying his motion for a new trial.

The facts are practically undisputed, and may be stated briefly: Defendant owned the lot in question and resided on it for several years prior to 1889. It was part of what is known as Ashbury Heights, in San Francisco. The land sloped toward the west, and on the westerly side fronted on Ashbury street. It does not appear whether or not it was in a thickly settled neighborhood. In its natural condition, the surface water which came from the lot flowed off through a gully across Ashbury street (over which there was a small bridge) and emptied into a pond a couple of blocks away. At some time prior to 1889, the city of San Francisco graded Ashbury street and threw up an embankment along the street and across the gully, and on the westerly side of said lot, to the height of eight or ten feet. This prevented the flow of surface water from the lot, and, on this account,…

A rehearing of this cause is denied, but the statement contained in the Department opinion, to the effect that no similar case had been cited in which damages were allowed, requires correction. The case of Pekin v. McMahon, 154 Ill. 141 , 45 Am. St. Rep. 114 , was noted on the margin of appellant’s brief, but-escaped attention. There are circumstances which distinguish that case from this—particularly with respect to the culpability of the defendant, but the similarity is sufficient to justify counsel in his claim that his position is supported by a case in point. I can only say that the reasoning of the opinion in that case has failed to convince me, and that the decision stands alone and without other support than may be found in the turntable cases from which the supreme court of Illinois was unable to distinguish it. I think, however, that there is a distinction which relieves us of the necessity of extending an exceptionally harsh rule of liability to such a case.

A turntable is not' only a danger specially created by the act of the ■ owner, but it is a danger of a different kind to those which exist in the order of nature. A pond, although artificially created, is in nowise…