36 S.W. 659 (Mo. 1896), Moran v. Pullman Palace Car Company

Citation:36 S.W. 659, 134 Mo. 641
Opinion Judge:Sherwood, J.
Party Name:Moran et al., Appellants, v. Pullman Palace Car Company et al
Attorney:John P. Leahy and L. Frank Ottofy for appellants. Dickson & Smith for respondent, Pullman Palace Car Company. W. C. Marshall for respondent, city of St. Louis.
Case Date:June 16, 1896
Court:Supreme Court of Missouri
 
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Page 659

36 S.W. 659 (Mo. 1896)

134 Mo. 641

Moran et al., Appellants,

v.

Pullman Palace Car Company et al

Supreme Court of Missouri, Second Division

June 16, 1896

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon, Judge.

Affirmed.

John P. Leahy and L. Frank Ottofy for appellants.

(1) The owner of property having thereon any dangerous agency, which is either attractive to children or where he has knowledge that they resort to it for amusement, or otherwise, and he fails to use ordinary care, under the circumstances, to guard the same against injury to them, he must respond in damages for such neglect, irrespective of the fact that the danger is not adjacent to the highway. Schmidt v. Dist. Co., 90 Mo. 284; Pekin v. McMahon, 154 Ill. 141; Leeright v. Ahrens, 60 Mo.App. 118; Fink v. Furnace Co., 10 Mo.App. 61-67, and cases cited, 73; Dwyer v. Railroad, 12 Mo.App. 597; Malloy v. Savings and Loan Association, 21 P. 525; Mackey v. Vicksburg, 64 Miss. 777; Branson's Adm'r v. Labrot, 81 Ky. 638; Powers v. Harlow, 53 Mich. 507; Hydraulic Works Co. v. Orr, 83 Pa. St. 332; Whirley v. White-man, 1 Head (Tenn.), 610; Coppner v. Pennsylvania Co., 12 Ill.App. 600; Penso v. McCormick, 125 Ind. 116; Railroad v. McDonald, 152 U.S. 262; Schmidt v. Cook, 23 N.Y.S. 799; Brinkley Car Works v. Cooper, 31 S.W. 154; Ilwaco, etc., v. Hedrick, 1 Wash. St. 446; Barthold v. Philadelphia, 154 Pa. St. 109; Railroad v. Measles, 81 Tex. 474. (2) It is not necessary to prove knowledge in defendant that children resorted to the place; it is bound to take notice of the habits of children. Franke v. City, 110 Mo. 516; Dwyer v. Railroad, 12 Mo.App. 597; Fink v. Mo. Fur. Co., 10 Mo.App. 61. (3) And the question whether the owner was exercising ordinary care under the circumstances is for the jury. Koons v. Railroad, 65 Mo. 592; Nagel v. Railroad, 75 Mo. 653; Brinkley v. Cooper, 31 S.W. 154; Barthold v. Philadelphia, 155 Pa. St. 109. (4) It is an element of negligence whether or not the place could be inclosed or fenced. Overholt v. Vieths, 93 Mo. 422; Rushenberg v. Railroad, 109 Mo. 112. (5) It was competent to show that other children had fallen into the pond; the court should have admitted this testimony. Golden v. Clinton, 54 Mo.App. 100; 36 Central Law Journal, p. 335 and cases cited; Railroad v. Measles, 81 Tex. 474. (6) The court erred in excluding sections 619 and 620 of the ordinances of the city of St. Louis; they require owners to fence property that is adjacent to streets and below the natural or artificial grades thereof and the failure to comply with such ordinances is negligence. Pekin v. McMahon, 154 Ill. 141; Keim v. R. & T. Co., 90 Mo. 314; Gass v. Railroad, 57 Mo.App. 574; Eads v. Gains, 58 Mo.App. 586.

Dickson & Smith for respondent, Pullman Palace Car Company.

(1) An owner of land is under no obligation to one trespassing thereon, even though an infant, to place guards around an excavation or pond wholly within such land and not immediately adjacent to a public highway. Overholt v. Vieths, 93 Mo. 422; Witte v. Stifel, 126 Mo. 295; Barney v. Railroad, 126 Mo. 372; Richards v. Connell, 63 N.W. 915; Ratte v. Dawson, 52 N.W. 965; Klix v. Nieman, 68 Wis. 272; Hargreaves v. Deacon, 25 Mich. 1; Charlebois v. Railroad, 91 Mich. 59; Murphy v. Brooklyn, 118 N.Y. 575; Sterger v. Van Sicklen, 132 N.Y. 499; Beck v. Carter, 68 N.Y. 283; Robertson v. Mayor, 28 N.Y.S. 13; Green v. Linton, 27 N.Y.S. 892; Clark v. Manchester, 62 N.H. 577; Frost v. Railroad, 9 A. (N. H.) 790; Gillespie v. McGowan, 100 Pa. St. 144; O'Connor v. Railroad, 44 La. Ann. 39; Benson v. Baltimore Tr. Co., 26 A. 985; Mergenthaler v. Kirby, 28 A. 1065; Maenner v. Carroll, 46 Md. 213; McGinniss v. Butler, 34 N.E. 259; Stevens v. Nichols, 29 N.E. 1150; Galligan v. Mfg. Co., 10 N.E. 171; Daniels v. Railroad, 154 Mass. 349; McEachern v. Railroad, 150 Mass. 515; Clark v. Richmond, 83 Va. 355; Addison on Torts, secs. 621, 622; Bigelow on Torts, 699; Cooley on Torts, 606. (2) The ordinances offered in evidence relate only to the duty of a landowner to guard excavations, etc., upon his land so near a public highway as to be dangerous under ordinary circumstances to persons properly using such highway, and were rightly rejected. Eisenberg v. Railroad, 33 Mo.App. 85; Overholt v. Vieths, 93 Mo. 422; Clark v. Richmond, 83 Va. 355.

W. C. Marshall for respondent, city of St. Louis.

(1) The circuit court properly excluded sections 619, 620, and 621, chapter 15, article 4, Revised Ordinances St. Louis, 1887. These ordinance provisions are merely police regulations which the city has power to adopt, but the city can not be made liable for damages resulting from a failure to enforce them. 15 Am. and Eng. Encyclopedia of Law, p. 1154, and cases cited in note 3. (2) The circuit court properly gave the instructions for a nonsuit as to the city of St. Louis. A municipality is not bound to provide...

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