Arnold v. City of St. Louis

• Decision Date: 14 November 1899
• Citation: 53 S.W. 900,152 Mo. 173
• Parties: Arnold et al., Appellants, v. City of St. Louis et al
• Court: Missouri Supreme Court

53 S.W. 900

152 Mo. 173

Arnold et al., Appellants, v. City of St. Louis et al

Supreme Court of Missouri, Second Division

November 14, 1899

Appeal from St. Louis City Circuit Court. -- Hon. Jacob Klein Judge.

Affirmed.

Martin & Bass and T. J. Rowe for appellants.

(1) The city of St. Louis by suffering and permitting a pond to remain on its public highway was guilty of maintaining a nuisance, and is liable for any injury caused by such nuisance. (2) The defendant, Isabella Dawson, by suffering and permitting a pond to form on her premises adjoining a public highway, is liable for any injury caused by such pond. (3) "Unguarded premises supplied with dangerous attractions are regarded as holding out an implied invitation to children, which will make the owner of the premises liable for injuries to them, even though they be technical trespassers. Whether or not the dangerous premises were so attractive to children as to suggest the probability of the accident, and thus render the owner liable, is a question for the jury." City of Pekin v. McMahon, Adm'r, 154 Ill. 141; Lepnick v. Gaddis, 26 L. R. A. 686. (4) The owner of property abutting on a public highway is bound to keep his premises in a condition reasonably safe for the public who have occasion to travel on the highway. Busching v. Gas Light Co., 73 Mo. 220; Clark v Famous Co., 16 Mo.App. 464; Kirkpatrick v. Knapp & Co., 28 Mo.App. 427. (5) The city is bound to keep its streets in a condition safe for the public to travel thereon. Indianapolis v. Emmelman, 108 Ind. 530.

B Schnurmacher and Chas. Claflin Allen for respondent City of St. Louis.

(1) Nowhere does the petition aver that Taylor avenue, between Margaretta and Kossuth avenues, is or was actually opened, or actually used for purposes of travel. Municipal corporations are not required to keep all of their streets in good repair, but only such as are necessary for the use of the traveling public, and which have been actually opened for travel. Bassett v. St. Joseph, 53 Mo. 290; Bremen v. St. Louis, 92 Mo. 482; Smith v. St. Joseph, 45 Mo. 449. Those not using the streets for purposes of travel can not complain of their condition. The liability of the corporation extends only to travelers injured therein. Kiley v. Kansas City, 87 Mo. 103; Russell v. Columbia, 74 Mo. 480; Bassett v. St. Joseph, 53 Mo. 290; Smith v. St. Joseph, 45 Mo. 449. (2) A city is not bound to guard its streets or bridges so as to prevent children from playing thereon and exposing themselves to danger, and is not liable for injuries which may be thus received. Schauf's Adm'r v. City of Paducah, 50 S.W. 42; Dehanitz v. St. Paul, 4 Am. Neg. Rep. 655; Gavin v. Chicago, 97 Ill. 66. (3) The existence of the pond was not the proximate cause of the accident, and therefore the city is not liable. Dillon's Mun. Corps., sec. 1007; Butz v. Cavanaugh, 137 Mo. 503. The proximate causes, as shown by the petition itself, were the weakness of the ice, and the act of the deceased children-thirteen and fourteen years old respectively -- in voluntarily going thereon to skate. (4) The petition does not allege that the accident occurred upon that portion of the pond located in the street. (5) If it occurred on the Dawson property the city was not liable, because a municipal corporation is not liable for its failure to abate a nuisance on private property. Harmon v. St. Louis, 137 Mo. 494; Butz v. Cavanaugh, 137 Mo. 503; Moran v. Pullman Palace Car Co., 134 Mo. 641; Witte v. Stifel, 126 Mo. 295; Overholt v. Vieths, 93 Mo. 423.

L. Frank Ottofy for respondent Isabella Dawson.

(1) The owner of real estate is not liable in damages to a trespasser who falls into an excavation thereon but only to one lawfully passing along the street who is accidentlly injured while lawfully using the public highway as a traveler. Overholt v. Vieths, 93 Mo. 422; Witte v. Stifel, 126 Mo. 295; Barney v. Railroad, 126 Mo. 372; Moran v. Pullman P. C. Co., 134 Mo. 641; Butz v. Cavanaugh, 137 Mo. 503; Heckler v. St. Louis, 13 Mo.App. 277; Richards v. Connell, 45 Neb. 467; Gillespie v. McGowan, 100 Pa. St. 144; Klix v. Nieman, 68 Wis. 271; Charlebois v. Railroad, 91 Mich. 59; Greene v. Linton, 27 N.Y.S. Rep. 891; Clark v. Manchester, 62 N.H. 577; O'Connor v. Railroad, 44 La. Ann. 339; McGuiness v. Butler, 159 Mass. 233; Benson v. Baltimore Traction Co., 77 Md. 535. (2) The allegation of the petition that at the time of the accident "the ice on said pond was so thin that it was dangerous to go thereon," is sufficient to sustain the demurrer. This was the proximate cause of the accident, and it is held, regardless of other considerations, that children thirteen and fourteen years of age are held guilty of contributory negligence under such circumstances. Butz v. Cavanaugh, 137 Mo. 512.

BURGESS, J. Gantt, P. J., concurs; Sherwood, J., absent.

OPINION

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 twelfth 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 in 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; and 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, two hundred feet long, one hundred feet wide and twenty 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. St. Joseph, 45 Mo. 449; Bassett v. St. Joseph, 53 Mo. 290; Russell v. Columbia, 74 Mo. 480; Kiley v. Kansas City, 87 Mo. 103; Brennan v. 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 twenty 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 can not be held to respond in...