Barrett v. Vill. of Princeton
| Decision Date | 08 December 1916 |
| Docket Number | No. 19953[100].,19953[100]. |
| Citation | 160 N.W. 190,135 Minn. 56 |
| Parties | BARRETT v. VILLAGE OF PRINCETON. JESMER v. SAME. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Mille Lacs County; William L. Parsons, Judge.
Actions by George A. Barrett, as administrator, against the Village of Princeton, and by Louis E. Jesmer, as administrator, against the same defendant. From an order denying a new trial, plaintiffs appeal. Affirmed.
The plaintiffs' intestates, boys about seven years of age, were killed by the caving in of a sewer trench which the defendant village was constructing through the center of one of its principal streets. The trench was left open and uncurbed for a time during the course of construction. The soil was sandy and liable to cave. The boys were on the street for play. Close by was the courthouse yard which they used as a playground. Boys came to the trench at times. All this the contractor in charge knew. When seen they were always warned away. At the time of the accident no one saw them. It is held that the boys, though using the street for purposes of play, were not trespassers; that the defendant was liable if negligent; but that under the evidence it was not negligent and the action was properly dismissed by the court. S. A. Anderson, of St. Paul, for appellants.
McLaughlin & McLaughlin, of St. Paul, for respondent.
Two actions against the village of Princeton, tried together, for damages for the death of the plaintiffs' intestates alleged to have been caused by the negligence of the village. At the close of the testimony they were dismissed on motion of the defendant. The plaintiffs appeal from the order denying their motion for a new trial.
The defendant village was engaged in constructing a public sewer in the center of First street. An excavation something like two and one-half feet wide and seven feet deep was made. The soil was sandy and loose with a thin crust on top and had a tendency to cave. In the course of the work curbing was used. There was three lengths of sixteen feet each. When the sewer pipe was laid in the portion of the trench protected by this curbing it was taken out and used in the trench further on. The trench was then partially but not wholly filled with earth. The reason for filling only partially was what water had to be used to get the earth packed solidly and if used at once it injured the cement joints of the sewer pipe. Some time in the afternoon of July 19, 1915, the son of the plaintiff Barrett and the son of the plaintiff Jesmer, each about seven years old, got into the trench where is was uncurbed and were buried by a cave-in and killed.
The courthouse was diagonally opposite and boys were accustomed to play in its yard. At times boys came down to the excavation. When seen they were warned or driven away by those on the work. On the day of the accident the two boys and others had been playing in the courthouse grounds and came from there to the trench and played about it. They threw stones from one side to the other and passed back and forth over it at a point where it was filled nearly to the top. Finally all went away. The two who were killed went together. No one saw them afterwards and no one saw the accident. They were found the next morning buried in the trench and dead. There had been a cave-in.
The street was open on either side of the trench for use by teams and there were side-walks at the property line. The boys were using the street for purposes of play. The city knew that boys came there. For purposes of strict travel the street so far as appears was reasonably safe-at least no one was hurt when using it solely for travel. The plaintiffs claim that the village, having knowledge that boys were likely to come to the trench and did come there, was negligent in leaving it uncurbed or in failing to guard it or use some efficient means of protection. Of course it is not claimed that there was actionable negligence in the method of construction. The claim is that there was negligence, in view of the situation, in leaving the trench uncurbed without further protection. The defendant claims that it owed no greater care than it exercised to those making a playground of the street.
Some carefully considered cases hold that a municipality, keeping its streets reasonably safe for public travel, is not liable to those injured while making use of them for play, at least unless such use is merely incidental to travel. Blodgett v. Boston, 8 Allen (Mass.) 237;Tighe v. Lowell, 119 Mass. 472; Stinson v. Gardiner, 42 Me. 248...
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