Arnold v. City of St. Louis

• Decision Date: 14 November 1899
• Citation: 152 Mo. 173,53 S.W. 900
• Parties: ARNOLD et ux. v. CITY OF ST. LOUIS et al.
• Court: Missouri Supreme Court

53 S.W. 900

152 Mo. 173

ARNOLD et ux. v. CITY OF ST. LOUIS et al.

Supreme Court of Missouri, Division No. 2.

November 14, 1899.

MUNICIPAL CORPORATIONS — NEGLIGENCE — LIABILITY FOR DEATH OF CHILDREN DROWNED IN UNGUARDED POND.

1. Where a complaint to recover damages for the death of children drowned while skating on an uninclosed and unguarded pond located on one of the streets of a city and on adjoining land does not allege that the accident happened upon that portion of the pond located in the street the city cannot be held liable.

2. Where a complaint to recover damages for the death of minor children drowned while skating on an uninclosed and unguarded pond on defendant's land does not allege that the children were there by permission or invitation of defendant, he cannot be held liable.

Appeal from St. Louis circuit court.

Action by Jacob Arnold and wife against the city of St. Louis and another. From a judgment entered on an order sustaining a demurrer to the petition, plaintiffs appeal. Affirmed.

Martin & Bass and T. J. Rowe, for appellants. B. Schnurmacher, Chas. C. Allen, and L. Frank Ottofy, for respondents.

BURGESS, J.

This is an action by plaintiffs, who were, at the time of the injury complained of, husband and wife, and as such prosecute this suit to recover from defendants, the city of St. Louis and Isabella Dawson, the sum of $10,000 damages for the death of their two minor children, Arthur James Arnold and Amanda Mary Arnold, who were drowned in the city of St. Louis on the 12th day of January, 1897, while skating upon the ice which had formed upon a pond of water which it is alleged had formed upon a portion of Taylor avenue, one of the public streets of said city, between Margaretta and Kossuth avenues, and upon land of the defendant Isabella Dawson, abutting the west side of said Taylor avenue. The petition is in two counts. The first is to recover $5,000 on account of the death of the boy, and the second is to recover the same amount on account of the death of the girl. This is the only material difference between the two counts. They both aver that the children were minors and unmarried; that the city of St. Louis is and was a municipal corporation; that Taylor avenue, between Margaretta and Kossuth avenues, is a public highway, and that defendant Isabella Dawson at the times mentioned in the petition was the owner of certain real estate fronting on the west side of Taylor avenue between the streets mentioned; that on January 12, 1897, and for a long time prior thereto, the defendants carelessly, negligently, wrongfully, and unlawfully suffered and permitted a large body of water, 200 feet long, 100 feet wide, and 20 feet deep, to collect and remain on the above portion of Taylor avenue and on the real estate of defendant Dawson; that said body of water had collected and remained on said street and said premises for more than a year prior to January 12, 1897, which fact was well known to the defendant city; and that it was the duty of said defendant to so guard said body of water that it would not be dangerous to the public. The petition further alleges that the water so collected was in the vicinity of the Ashland School (one of the public schools of the city of St. Louis), and that when frozen over it was attractive to children of tender years, and to the deceased children of plaintiffs, who were drawn there for the purpose of skating upon the ice; that, upon the day just named, ice had formed upon the pond, attracting children from said school, and other children, to skate thereon; "and that the ice on said pond was so thin that it was dangerous to go thereon." The petition proceeds to allege that on January 12, 1897, the children of plaintiffs, attracted as aforesaid, went upon the pond to skate, and the ice broke, and that they were immediately drowned. It is also averred in each of said counts that the fact that a large number of children were in the habit of skating upon said ice was well known to defendants, and that the death of the children was caused "by the carelessness and the negligence and wrongful action of the defendants in wrongfully suffering and permitting said pond to form on said Taylor avenue and said real estate above and heretofore described herein, and to remain thereon unguarded, so that when it was frozen over it would attract children to skate thereon." To this petition each of the defendants filed a general demurrer on the ground that the same does not contain facts sufficient to constitute a cause of action, which demurrers were sustained by the court. Plaintiffs declining to plead further, final judgment was entered in favor of defendants on the demurrers, and plaintiffs brought the case to this court by appeal.

The petition shows very conclusively that the action is not based upon the ground that Arthur James Arnold and Amanda Mary Arnold were travelers upon the street of defendant city, and that by reason of its unsafe condition it was dangerous to persons passing along and upon it, in consequence of which they were drowned, but upon the ground that the pond, when covered with ice, was attractive to children; so that, as deceased were not using the street at the time of the accident for the purpose of travel, the rule of law which requires municipalities to keep their streets in a reasonably safe condition for that purpose does not govern in this case, for the city owed them no such duty. Smith v. City of St. Joseph, 45 Mo. 449; Bassett v. Same, 53 Mo. 290; Russell v. Inhabitants of Columbia, 74 Mo. 480; Kiley v. Kansas City, 87 Mo. 103; Brennan v. City of St. Louis, 92 Mo. 482, 2 S. W. 481. At Taylor avenue, where the accident occurred, it seems that the water covered the street to the depth of 20 feet, and that the children went upon the ice which had accumulated over it on the pond, and were skating thereon, in consequence of which they were drowned; so that, unless the city was negligent in permitting the pond to remain in its uninclosed or unguarded condition, it cannot be held to respond in damages in consequence of the death of the children. In the case of Schauf's Adm'r v. City of Paducah (Ky.) 50 S. W. 42, there was a pond in the commons of the city, some distance from any highway; and while plaintiff's son, about 7 years of age, was crossing the commons, he caught a bird, and, seeing some children fishing at the pond, he went over to where they were. The bird got away from him and fluttered out into the water, and he waded out after it, and in doing so ventured too far, and got over his depth and was drowned. It was ruled that the city was not liable. The court said: "Accumulations of water are common about all cities, especially river towns. A large part of the farm houses of this state have...