Anderson v. Board of Ed. of City of Fargo
| Decision Date | 02 November 1922 |
| Docket Number | 358 |
| Court | North Dakota Supreme Court |
An appeal from the District Court of Cass County, A. T. Cole, J.
Order affirmed.
Order affirmed. Appellant entitled to costs and disbursements on appeal.
Taylor Crum (Aubrey Lawrence, of counsel), for appellant.
Spalding & Shure, for respondent.
OPINION
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 thirteen 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.
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 4th, 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 reenacts § 14 of the act, and repeals § 24 thereof is also pleaded. It appears from the complaint that the defendant organized its board of education under the 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, Darling's 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 anywise 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 five hundred children, ranging from six to fifteen 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, wilfully 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 first 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 eight 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 first 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 twelve 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 twelve 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 wilful malfeasance; and did so wilfully, 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 five hundred children, ranging from six to fifteen 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 first day of December A. D., 1920, one John William Anderson, deceased--only son of the widowed plaintiff herein--when he was thirteen 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 five hundred children were wont to do, and were reasonably likely to do, 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 wilful 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 first day of December A. D. 1920, to the great risk, hazard, and mortal danger of all of the more than five hundred children playing on said public resort and public school playgrounds as aforesaid.
That plaintiff is a widow forty-two years of age, with three living daughters, aged respectively, fifteen, nine, and six years, who are wholly dependent upon plaintiff for their education, care, and support; that her son the said John William Anderson, deceased, who was killed as aforesaid, in addition to his school and domestic tasks, was at the time of his death and for sometime prior thereto, earning and contributing about twenty dollars per month toward the support of himself, the plaintiff, and his three sisters, by working a portion of the time for a merchant; and was likely to be and already was the sole person upon which plaintiff depended and was likely to depend for assistance for her own and her daughters' support.
The demand for judgment was in the sum of $ 25,000 damages, and $ 200 additional for burial expenses and fees for physician services expended by the plaintiff in caring for the injuries of her son.
To the complaint the defendant interposed a demurrer. The ground of the demurrer was that the complaint...
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