Anderson v. Bd. of Educ. of City of Fargo

• Decision Date: 02 November 1922
• Citation: 49 N.D. 181,190 N.W. 807
• Parties: ANDERSON v. BOARD OF EDUCATION OF CITY OF FARGO.
• Court: North Dakota Supreme Court

49 N.D. 181

190 N.W. 807

ANDERSON

v.BOARD OF EDUCATION OF CITY OF FARGO.

Supreme Court of North Dakota.

Nov. 2, 1922.

Syllabus by the Court.

Plaintiff brought an action against the defendant, charging it in her complaint with negligence in establishing and maintaining upon its school playgrounds certain apparatus, consisting of several heavy swings and chutes, more particularly described in the complaint, and in appropriate language alleged such apparatus to be a nuisance, and further alleging that her son, while on the school playgrounds, by reason of such negligence was injured and killed. She claimed damages in the sum of $25,000, and in addition thereto $200 to cover burial expenses of the boy and for physician's fees.

The defendant demurred to the complaint upon the grounds that it did not state sufficient facts to constitute a cause of action, and the trial court made an order sustaining the demurrer, from which plaintiff appealed.

The order of the trial court was proper, in that the defendant in providing such swings and chutes and apparatus in question for the use of the schools was acting in a governmental capacity, and therefore was not subject to a suit, either in an action for damages or otherwise.

Appeal from District Court, Cass County; A. T. Cole, Judge.

Action by Inga Anderson against the Board of Education of the City of Fargo, a body corporate. From an order sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.Taylor Crum, of Fargo (Aubrey Lawrence, of Fargo, of counsel), for appellant.

Spalding & Shure, of Fargo, for respondent.

GRACE, J.

Plaintiff appeals from an order sustaining a demurrer to the complaint. The action is one by plaintiff, a widow, against defendant to recover damages, on account of the death of her son, a boy 13 years of age, alleged to have been caused by the negligence of the defendant in the construction and maintenance upon a certain school playground certain apparatus, later herein more fully described, by which, in the circumstances hereinafter mentioned, the boy was struck in the head and killed.

[1][2] The principal allegations of the complaint are in substance as follows:

That the defendant is a body corporate by virtue of a special law in full force and effect, to wit, an act approved March 4, 1885, entitled “An act to amend an act providing a board of education for the city of Fargo and regulating the management of the public schools therein.” The amendment, which amends and re-enacts section 14 of the act and repeals section 24 thereof, is also pleaded. It appears from the complaint that the defendant organized its board of education underthe act and has conducted the public schools of Fargo under and by virtue of the act and amendments thereto; that defendant has possession and control of block 3, Darlings addition to the city of Fargo, upon which there has been, and now is, a certain public school building, known as “Aggasiz School”; that at all times during the year 1920 and since the control and possession of that public schoolhouse, school site, all of block 3, and all of the furniture, books, apparatus, and all appurtenances thereunto belonging or in any wise appertaining, are and have been in the possession and under the control of the defendant, through its officers, agents, and servants.

That upon the west side of the school building and within block 3 there is a plot of ground which is and was at all times hereinafter mentioned a public resort and public school playground, used and frequented and permitted by defendant to be used and frequented by more than 500 children, ranging from 6 to 15 years of age; that the duties of the defendant as to said public resort and public school playgrounds became and was a matter of public and general concern; that upon said public resort and public school playgrounds the defendant, by and through its officers, agents, and servants, willfully and negligently and by reason of carelessness, negligence, default, and wrongful acts of its said officers, agents, and servants, and for want of due attention to its duties, erected and suffered to be erected, and suffered and permitted to remain for several weeks to the said 1st day of December, A. D. 1920, upon said public resort and public school playgrounds, and in a public and notorious manner, two chutes or inclined troughs, the summits of which were and are 8 or more feet in height, and accessible to children by means of iron ladders, from which said summits the said chutes or inclined troughs sloped toward the west at a steep grade to the ground; that a few feet in a westerly direction from the chutes the defendant, acting as aforesaid, through its officers, agents, and servants, publicly and notoriously erected and allowed to be erected, and suffered and permitted to remain for several weeks prior to the 1st day of December, 1920, several series of heavy swings, the same being contrivances and apparatus adapted for people to swing upon, to and fro, and were constructed of wood and iron, and suspended from poles or timbers which were fastened or attached to the tops of posts or poles more than 12 feet in height, with heavy wooden iron bound or mounted plank seats, suspended by heavy iron chains, attached to said poles or timbers, which said poles or timbers were more than 12 feet from the ground; that said swings, when in operation, swing from east to west and from west to east were wholly unguarded or superintended by any teacher or other adult person, and were so constructed, located, and unprotected by any fence or barrier whatsoever, and without any mattress or netting thereunder.

That said apparatus, consisting of said chutes and swings, was not a part of the original plan of said public school building or of said public resort and public school playgrounds and was entirely foreign to the original plan provided for, accepted, and used in building said public schoolhouse and in laying out the public resort and public playgrounds, and that in the erection and maintenance of such apparatus there was no connection whatever with the original plans in the adoption of which the defendant may have acted in a discretionary or governmental capacity in the performance of any duty enjoined by law; that said chutes and swings were by the neglect or by the positive act and permission of the defendant, through its officers, agents, and servants. located and constructed or permitted to be located and constructed, and permitted for several weeks to remain, in such manner as to constitute an eminently dangerous, constant, continuous, and, as to children, an attractive, enticing, inexcusable, and alluring public nuisance, which danger was patent and obviously apparent to any adult person of ordinary intelligence and caution; that the defendants, by and through its officers, agents, and servants, did by locating, erecting, and maintaining, and by permitting said apparatus to be located, erected, and maintained, as aforesaid perform and suffered to be performed a willful malfeasance, and did so willfully, carelessly, and negligently permit said chutes and swings to remain on said public resort and public school playgrounds for several weeks, and allowed said public resort and public school playgrounds for several weeks to be used as a playground for more than 500 children, ranging from 6 to 15 years of age, without said apparatus being guarded or fenced off in any manner whatsoever, and without any supervisors or supervisor or other precaution taken to protect said children, or any of them, lawfully on said grounds, from being injured and killed by said apparatus, all of which was well known to defendant, its officers, agents, and servants, or in the exercise of ordinary diligence should have been known to it and them.

That on the 1st day of December, A. D. 1920, one John William Anderson, deceased, only son of the widowed plaintiff herein, when he was 13 years and three months of age, and when in good and robust health, and when lawfully on said public resort and public school playgrounds, and under legal compulsion to attend said school, and when lawfully in the vicinity of said apparatus, with other children, innocently yielded to the instincts of childhood and was sliding, running, and playing on and about said apparatus, as more than 500 children were wont to do, and were reasonably likely to do, and was struck in the head and neck by one of said heavy iron-bound or iron-mounted plank swing seats, and mortally wounded thereby, and then and there by reason of the said willful carelessness, negligence, and default of the defendant, acting through its officers, agents, and servants, as aforesaid, was so mortally wounded that within a few minutes thereafter, and without regaining consciousness, he languished and died of the direct and immediate result of having been struck by one of the heavy swing seats as aforesaid, all without any fault or negligence of this plaintiff, or without any fault or negligence of the said William Anderson, deceased, when his age and surroundings are considered, but was wholly caused by the presence on said public resort and public school playgrounds of said nuisance, consisting of said chutes and swings, the presence of which upon said public resort and public school playgrounds the defendant was in duty bound to take notice and abate, but, on the contrary, allowed and permitted the same to remain on said public resort and public school playgrounds for said several weeks prior to and on said 1st day of December, A. D. 1920, to the great risk, hazard, and mortal danger of all of the more than 500 children playing on said public resort and public school playgrounds as aforesaid.

That plaintiff is a widow 42 years of age, with three living daughters, aged respectively, 15, 9, and 6 years, who are wholly dependent upon plaintiff for their education, care, and support; that her son the said John William Anderson,...