Anderson v. City of Fargo

• Decision Date: 20 January 1922
• Citation: 48 N.D. 722,186 N.W. 378
• Parties: ANDERSON v. CITY OF FARGO.
• Court: North Dakota Supreme Court

48 N.D. 722

186 N.W. 378

ANDERSON

v.CITY OF FARGO.

Supreme Court of North Dakota.

Jan. 4, 1922.

Rehearing Denied Jan. 20, 1922.

Syllabus by the Court.

Plaintiff brought this action against defendant to recover damages for its alleged negligence in maintaining upon a certain school playground certain apparatus, such as troughs, chutes, and heavy swings, which were used by the children while attending the school there conducted.

Plaintiff's son, a boy aged 13 years and 3 months, while attending the school, and while playing upon said playgrounds, was struck and killed by one of the heavy swings.

The title of all school property of the city of Fargo was vested in the city, for the use of the schools therein, by a special act of the Legislature of March 4, 1885, which act was amended February 2, 1915 (Laws 1915, c. 125). The same act provided for a board of education for the schools of the city, and gave it exclusive control of them, and the further right to purchase, sell, exchange, and lease houses or rooms for school purposes and lots or sites for schoolhouses, and to borrow money for school purposes, as provided by the act as amended.

The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The trial court sustained the demurrer, which, for reasons stated in the opinion, we think was not error.

Appeal from District Court, Cass County; M. J. Englert, Judge.

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

W. H. Shure, of Fargo (B. F. Spalding, of Fargo, of counsel), for respondent.

GRACE, C. J.

This appeal is from an order sustaining a demurrer to the complaint. The action is one brought by the plaintiff, a widow, against the defendant, to recover damages on account of the death of her son, a boy of 13 years of age, alleged to have been caused by the negligence of the defendant in maintaining certain school playgrounds, alleged to be owned by the city, upon which certain apparatus, hereinafter more fully described, was alleged to have been maintained by it, and by which, in the circumstances herein mentioned, the boy was struck in the head and killed.

[1] The substance of the complaint will be mentioned in order that it may be determined whether the trial court erred in making its order sustaining the demurrer. It contains allegations to the effect that the city of Fargo was incorporated as a municipal corporation on the 12th day of April, 1875, under an act to incorporate the city of Fargo, approved March 5, 1875; that on or about the month of April, 1913, the defendant adopted the commission form of government pursuant to the provisions of chapter 77, Laws North Dakota 1911; that a copy of the Act of March 4, 1885, being a special law providing for a board of education for the city of Fargo, is made a part of the complaint, and an amendment of that act approved February 2, 1915 (Laws 1915, c. 125), amending section 14, and repealing section 24 thereof; that in April, 1885, defendant by vote of the people organized its board of education; that the members thereof became elective officers of the defendant, a municipal corporation; that the defendant has since 1885 conducted its public schools pursuant to the provisions of the Act of March 4, 1885, and the amendment thereto; that among other real estate owned by the defendant is block 3 of Darling's addition to the city of Fargo, on which there is a certain public school building designated as “the Aggasiz School”; that at all times during the year 1920, and since, the title and ownership, control and possession of the schoolhouse, the furniture, books, and apparatus and of block 3 and all appurtenances thereof were vested in defendant; that upon the west side of block 3 is a public playground, used and frequented, and permitted to be used and frequented, by more than 500 children, ranging from 6 to 15 years of age; that upon the playground the defendant, through its officers, agents, and servants, the said board of education, willfully and negligently, and by reason of carelessness and wrongful acts and omission of its said officers, agents, and servants, and for want of due attention to its duties, erected and suffered to be erected, and permitted to remain for several weeks prior to December 1, 1920, upon such school playground, and in a public and notorious manner, two chutes or inclined troughs, the summits of which were 8 or more feet in height, and accessible to children by means of permanent iron ladders from which the chutes or inclined troughs sloped towards the west at a steep grade to the ground; that a few feet in a westerly direction from these chutes the defendant, through its officers, agents, and servants, publicly and notoriously erected, and permitted to remain for several weeks prior to December 1, 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 were 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 iron-mounted planks, each suspended by heavy iron chains attached to said poles or timbers, which swings, when in operation, from east to west and from west to east, were wholly unguarded or superintended by any teacher or any adult person, and were unprotected by any fence or barrier whatsoever, and without any mattress or netting thereunder; that the chutes and swings were not a part of the original plan of the public school building or public school playground, and were foreign to the original plan provided for, accepted, and used in building said public schoolhouse and running of said public resort at said public school playgrounds; that said chutes and swings were, by the neglect or by...