Richards v. Connell

• Citation: 63 N.W. 915,45 Neb. 467
• Decision Date: 19 June 1895
• Docket Number: 6051
• Parties: FANNIE E. RICHARDS, ADMINISTRATRIX, v. WILLIAM J. CONNELL ET AL
• Court: Nebraska Supreme Court

63 N.W. 915

45 Neb. 467

FANNIE E. RICHARDS, ADMINISTRATRIX, v. WILLIAM J. CONNELL ET AL

No. 6051

Supreme Court of Nebraska

June 19, 1895

ERROR from the district court of Douglas county. Tried below before DOANE, J.

AFFIRMED.

Breckenridge & Breckenridge and L. F. Crofoot, for plaintiff in error cited: Barrett v. Southern P. R. Co., 27 P. [Cal.] 666; Penso v. McCormick, 25 N.E. [Ind.], 156; Crogan v. Schiele, 53 Conn. 186; Toomey v Sanborn, 146 Mass. 28; City of Indianapolis v. Emmelman, 108 Ind. 530; Khron v. Brock, 144 Mass. 516; Gulf, C. & S. F. R. Co. v. Styron, 66 Tex. 421; Powers v. Harlow, 53 Mich. 507; Beck v. Carter, 68 N.Y. 283; Barnes v. Ward, 9 M., G. & S. [Eng.], 392; Hadley v. Taylor, L. R., 1 C. P. [Eng.], 53; Sioux City & P. R. Co. v. Stout, 17 Wall. [U. S.], 657; Westerfield v. Levis, 9 So. Rep. [La.], 52; Lynch v. Smith, 104 Mass. 52; City of Chicago v. Hesing, 83 Ill. 204; Hydraulic Works Co. v. Orr, 83 Pa. 332; Birge v. Gardiner, 19 Conn. 507; Keffe v. Milwaukee & St. P. R. Co., 21 Minn. 207; Nagel v. Missouri P. R. Co., 75 Mo. 653; Schmidt v. Kansas City Distilling Co., 2 S.W. [Mo.], 417; City of Chicago v. Keefe, 114 Ill. 222; Village of Carterville v. Cook, 129 Ill. 152; Brennan v. City of St. Louis, 92 Mo. 482.

Connell & Ives, contra, cited: Klix v. Nieman, 32 N.W. [Wis.], 223; Overholt v. Vieths, 6 S.W. [Mo.], 74; Ratte v. Dawson, 52 N.W. [Minn.], 965; Gillespie v. McGowan, 100 Pa. 144; McEachern v. Boston & M. R. Co., 23 N.E. [Mass.], 231; Clark v. Manchester, 62 N. H., 578; Pierce v. Whitcomb, 48 Vt. 127; Hargreaves v. Deacon, 25 Mich. 1; Sweeny v. Old Colony & N. R. Co., 10 Allen [Mass.], 368; Schmidt v. Bauer, 22 P. [Cal.], 256; Benson v. Baltimore Traction Co., 26 A. [Md.], 975; Murphy v. City of Brooklyn, 23 N.E. [N. Y.], 888; Nolan v. New York & N. H. R. Co., 4 A. [Conn.], 110; Frost v. Eastern R. Co. 9 A. [N. H.], 791; Faris v. Hoberg, 33 N.E. [Ind.], 1028; Thiele v. McManus, 28 N.E. [Ind.], 327.

OPINION

The facts are stated in the opinion.

POST, J.

This was an action in the district court of Douglas county by Fannie E. Richards, as administratrix of the estate of George Bertram Weston, deceased, against the city of Omaha, William J. Connell, and William E. Clark. It was held by the district court, on demurrer interposed by Connell and Clark, that the petition failed to state a cause of action as against them, which is the only ruling assigned as ground for the reversal of the judgment of dismissal as to the defendants named.

The allegations of the petition, so far as they refer to the defendants in error, are, in substance, as follows: On the 29th day of June, 1891, and for a long time prior thereto said Clark was the owner of lots Nos. 40 and 41, in Hickory Place, an addition to the city of Omaha, and said Connell was during said time the owner of the adjoining premises, described as lot No. 59, in Redick's second addition to said city; that the defendants had for a long time prior to the day named negligently permitted the surface water to accumulate on said lots, thereby creating a deep and dangerous pond, and that they had failed and neglected to fence said lots or to erect barriers of any kind to prevent children, lawfully in the vicinity thereof, from falling into said pond; that said lots are situated in the vicinity of one of the public schools of said city, and the pond aforesaid is not only dangerous to persons passing along South Twenty-fifth street adjacent thereto, but is in a public and much frequented place and attractive to children of tender age, many of whom are accustomed to play about and upon said water; that on said June 29, 1891, the plaintiff's intestate, a boy ten years of age, yielding to the natural impulse of childhood, went on said pond upon a section of wooden sidewalk floating thereon, from which he fell into said pond and was drowned. The language of the petition is somewhat ambiguous, but there is in the brief of plaintiff's counsel no claim that the deceased at the time of the accident was passing along the street or that the fatal result thereof is directly or indirectly chargeable to a proper use of the sidewalk. On the other hand, the construction, in which both parties appear to concur, is that the deceased had constructed a raft of the floating sidewalk, from which he fell while thus engaged at play on the pond. The petition, we think, fails to state a cause of action against the defendants, and that the demurrers were rightly sustained. The single question presented by the record is whether the owner of a vacant lot upon which is situated a pond of water or a dangerous excavation is required to fence it or otherwise insure the safety of strangers, old or young, who may go upon said premises not by his invitation, express or implied, but for the purpose of amusement or from motives of curiosity. The authorities we find to be in substantial accord, and sustain the proposition that independent of statute no such liability exists.

In Hargreaves v. Deacon, 25 Mich. 1, which was an action for the death of the plaintiff's son, a child of tender years, by drowning in a cistern left unguarded, it is said: "Cases are quite numerous in which the same questions have arisen which arise in this case, and we have found none which hold that an accident from negligence, on private premises, can be made the ground of damages, unless the party injured has been induced to come by personal invitation, or by employment which brings him there, or by resorting there as to a place of business or of general resort held out as open to customers or others whose lawful occasions may lead them to visit there. We have found no support for any rule which would protect those who go where they are not invited, but merely with express or tacit permission, from curiosity or motives of private convenience, in no way connected with business or other relations with the occupant."

In Klix v. Nieman, 68 Wis. 271, 32 N.W. 223, a case quite similar to that before us, it is said, after an exhaustive review of the authorities: "Upon the facts we do not think the law imposed the duty upon the defendant of building a fence or guard to prevent children from reaching the pond; therefore he is not liable for the death of the child."

In Ratte v. Dawson, 52 N.W. 965, an infant three years of age was by an elder sister taken for recreation to a vacant lot, and accidentally killed by the caving in of an embankment, caused by excavation for sand, which had been left unfenced. In the opinion of the court it is said: "The parties were clearly trespassers. They were not on the premises by plaintiff's invitation or for any lawful purpose. He owed then no duty to fence or guard his premises to prevent...