Brown v. Salt Lake City, 1878

• Court: Supreme Court of Utah
• Writing for the Court: FRICK, J.
• Citation: 93 P. 570,33 Utah 222
• Parties: BROWN v. SALT LAKE CITY
• Decision Date: 09 January 1908
• Docket Number: 1878

93 P. 570

33 Utah 222

BROWN
v.
SALT LAKE CITY

No. 1878

Supreme Court of Utah

January 9, 1908

APPEAL from District Court, Third District; T. D. Lewis, Judge.

Action by Lettie A. Brown against Salt Lake City. From a judgment for plaintiff, defendant appeals.

AFFIRMED.

Ogden Hills and H. J. Dininney, for appellant.

APPELLANT'S POINTS.

The statute says, all claims for damages or injury must be presented to the city council. (Sec. 312, Laws 1903, p. 12.)

A claim for death of a person must be presented to the city authorities. (Taylor v. Woburn, 130 Mass. 494; Madden v. Springfield, 131 Mass. 441.)

The requirement is reasonable and is mandatory, and a condition precedent to recovery. (Lincoln v. Grant, 55 N.W. 745; Dale v. Duluth, 76 N.W. 1029; Trost v. Casselton [Mich.], 79 N.W. 1071; Startling v. Bedford [Iowa], 62 N.W. 674; Hastings v. Foxworthy, 63 N.W. 955 (Neb.); Sowle v. Tomah [Wis.], 51 N.W. 571; Schleicher v. Mt. Vernon, 85 N.Y. 326; MacMullen v. Middleton [N.Y.], 79 N.E. 863; Engstrom v. Minneapolis, 78 Minn. 200; Bausher v. St. Paul, 75 N.W. 745; Forsythe v. Oswego, 95 N.Y.S. 33; Postel v. Seattle, 83 P. 1025; Cases cited in Vol. 4, Supp. Am. & Eng. Enc'y of Law, p. 120.)

Notice of the claim must be given, and the same alleged and proved to sustain the action. (Low v. Williams, 75 Me. 113; Foley v. Mayor, 1 A.D. 586; Lincoln v. Grant, 38 Neb. 369; Olmstead v. Pound Ridge, 71 Hun. 25; Arthur v. Glens Falls, 66 Hun 136; Susengeth v. Randout, 48 Wis. 334; Wentworth v. Simons, 60 Wis. 381; Dorsey v. Racine, 60 Wis. 292; Barrett v. Mobile, 129 Ala. 179; Columbus v. Daniel, 117 Ga. 823; Jewell v. Ithaca, 72 A.D. 220; Smith v. N.Y., 88 A.D. 606; Silger v. N.Y., 88 N.Y.S. 1003; Reining v. Buffalo, 102 N.Y. 308; MacMullen v. Middletown [N.Y.], 79 N.E. 863; Sowle v. Tomah, 51 N.W. 571; Baggs v. Geneva, 90 N.Y.S. 858.)

If not alleged in the complaint it is demurrable. (O'Donnell v. New London [Wis.], 89 N.W. 512; Lincoln v. Grant, supra; Fenton v. Salt Lake County, 4 Utah 446; Nothdurft v. City of Lincoln, 105 N.W. 1084.)

In the last case cited the court held that the filing of the notice of claim was jurisdictional. Also (State v. Colleton Co., 31 So. Car. 81; Goldsworthy v. Linden [Wis.], 43 N.W. 655.)

The requirement that a claim be presented within a certain time is a statute of limitation. (Hay v. City of Baraboo [Wis.], 105 N.W. 654; Van Auken v. Adrian [Mich.], 98 N.W. 15; O'Connor v. Fond du Lac [Wis.], 85 N.W. 327.)

Neither a municipal corporation nor any other person is liable for an injury to a trespasser upon its property, and there is no exception to the rule in favor of a child. (Vol. 1, sec. 803, Smith on Mod. M. C.; Gray v. Railroad [Mass.], 38 N.E. 186; Schauf v. Paducah [Ky.], 50 S.W. 42; Klix v. Newman, 68 Wis. 273; Gramlick v. Wurst, 86 Pa. 74; Omaha v. Bowman [Neb.], 72 N.W. 316-318; Dehantz v. St. Paul [Ill.], 76 N.W. 48-50; Nutting v. St. Paul [Minn.], 76 N.W. 61; Barnes v. Railroad, 49 A. S. R. 416; Walsh v. Railroad, 145 N.Y. 301; Frost v. Railroad, 64 N.H. 220; Bates v. Railroad, 90 Tenn. 36; Daniels v. Railroad, 154 Mass. 349; Gillespie v. McGowan, 100 Pa. 123; Hughes v. Railroad, 71 N.H. 279; Carter v. Railroad, 19 W.Va. 20; Friedman v. Snauctul, 71 N. J. L. 605, 618; Railroad v. Arnold, 78 Miss. 787; McCaughna v. Electric Co., 129 Mich. 407; Ryan v. Towar, 128 Mich. 463; Uthermohlen v. Co., 50 W.Va. 457; Harris v. Cowles [Wash.], 80 P. 537; Stendal v. Boyd, 73 Minn. 53; Richards v. Connell, 45 Neb. 467; Peters v. Bowman [Cal.], 47 P. 113, 598.)

If the bar across the entrance to the conduit was pushed over by a person without authority, and by reason of such change Marcus was able to get into the conduit, and therein met his death, the defendant was not liable. (3 Abbott, M. C., p.. 2295, 2320; Neal v. Bates, 20 R.I. 793; Ball v. Independence, 41 Mo.App. 469.)

Dey & Hoppaugh and E. A. Walton for respondent.

RESPONDENT'S POINTS.

Plaintiff does not seek to recover for any defect in or negligence with respect to any part of the highway. And the statute is only intended to apply to those injuries caused by defects in public ways or thoroughfares which affect their usefulness or condition for the purposes of travel.

Such a statute is not intended to apply to the common law, liability of a municipal corporation for acts in a private capacity. (D'Amico v. Boston, 58 N.E. 158; Pys v. Mankato [Minn.], 38 N.W. 621; Moran v. St. Paul, 56 N.W. 80; Hughes v. City of Fond du Lac [Wis.], 41 N.W. 407.)

The latter part of the section referring to the presentation within a year of "any other claim" is not claimed in the brief to apply and clearly does not apply to actions in tort. (2 Smith's Modern Law Mun. Corp., sec. 917. Harrigan v. Brooklyn, 23 N.E. 741; Davis v. Great Falls, 77 P. 309; Shields v. Town of Durham, 24 S.E. 974; Kelley v. City of Madson, 43 Wis. 648.)

Any person who leaves any dangerous appliance, machinery, or anything having inherently secret dangers, or which in its ordinary use by children will occasion loss of life or injury, knowing that the thing is in its nature enticing and alluring to children of a tender age, and where they are impelled by their childish instincts to be upon or play with the dangerous thing; and who knowing that children so risk their lives, permits the thing to remain, without exercising reasonable care to guard against its use, is liable for the consequences which ensue.

This rule was laid down in the "turntable" cases. (Railroad v. McDonald, 152 U.S. 262; Barrett v. S. P. Co., 91 Cal. 296, 303; Railroad v. Fitzsimmons, 22 Kan. 686, 31 Am. Rep. 203; Powers v. Harlow, 53 Mich. 507; O'Malley v. Railroad, 43 Minn. 289; Railroad v. Stryon, 1 S.W. 161; Evansich v. Railroad. 57 Tex. 126, 44 Am. 586; Railroad v. Krayenbuhl, 12 Am. Neg. 300; Peters v. Bowman, 115 Cal. 345, 47 P. 113, 598; Keffe v. Railroad, 21 Minn. 207, 18 Am. Rep. 393.)

The following cases are particularly applicable to the case at bar. (Indianapolis v. Emmelman, 9 N.E. 155; Pekin v. McMahon, 39 N.E. 484; Hydraulic Works Co. v. Orr, 83 Pa. St. 332; Penso v. McCornick, 25 N.E. 156; Harriman v. R. R. Co., 12 N.E. 451; Brinkley Car. Co. v. Cooper, 31 S.W. 154; Powers v. Harlow, 19 N.W. 257; Con. El. Co. v. Healy, 70 P. 884; Birge v. Gardner, 19 Conn. 507; Price v. Atchinson, Water Co., 50 P. 540. 2 Shear. & R., Neg. [4th Ed.], 705.)

Trespass is but one form of contributory negligence. The Supreme Court of the United States and most of the states hold that where the dangerous situation is of a character to tempt children, to go into or upon it, and where the danger is such that their immature judgment opposes no warning, contributory negligence cannot be considered. (Railroad v. McDonald, 152 U.S. 262; Railroad v. Stout, 84 U.S. 657; Price v. Water Co., 50 P. 450; Biggs v. Con. Barb Wire Co., 5 Am. Neg. 355; Lynch v. Murden, 1 Q. B. 29; Smith v. O'Connor, 48 Pa. St. 218; Rauch v. Loyd, 72 A. D. 747; Railroad Co. v. St. Johns, 73 A. D. 149; Railroad Co. v. Duray, 79 A. D. 374; Railroad Co. v. Snyder, 98 A. D. 175; Chicago v. Major, 68 A. D. 553. See also Bishop Non. Cont. Law, 854. 2 Cooley Torts, 1270-1.)

FRICK, J. McCARTY, C. J., and STRAUP, J., concur.

OPINION [93 P. 571]

[33 Utah 227] FRICK, J.

The plaintiff brought this action to recover damages for the death of her son, a lad about eight years of age, alleged to have been caused through the negligence of the defendant in failing to guard the entrance into a certain waterway or conduit constructed and maintained by it. The pleadings require no special attention. The allegations of the complaint were sufficient to admit proof of all the facts hereinafter stated, and the answer set forth all the matters in defense referred to in this opinion. The evidence coming from both sides fairly tends to establish the following facts: The city, in September, 1904, and for many years prior thereto, owned and maintained a system of waterworks together with a source of water supply which came from the mountains lying to the north and east of the city. It furnished water to the inhabitants for domestic purposes through a system of pipe lines, and for the water so used it collected pay in accordance with established rates. It also, through the same pipes, furnished the inhabitants water for fire protection, for which no special charges were made. It also, by means of open ditches and laterals, distributed, without charge, certain [33 Utah 228] water among the inhabitants for irrigation purposes. One source of water supply came through what is known as "City Creek," which enters the city from the north and flows in a southwesterly direction through the northwesterly part of the city, and finally empties into the Jordan river west of the corporate limits. City Creek, like all mountain streams, has considerable fall, and the water flows rather swiftly and with considerable force. Some distance north of the city dams are placed across the stream, and by means of gates and weirs the water is forced into pipe lines for distribution. In the low-water season all the water is forced into these pipes, and none flows down the creek below the intake of the pipes; but in the spring and early summer months there is more water in the creek than the pipes will carry, and, when such is the case, the surplus flows down the stream through the city as stated above. In case of heavy rains, or when the tanks are flushed, or if for any reason water is not wanted in the pipes, it is likewise permitted to flow down the creek. This flow of water through the creek in its natural state has a tendency to erode or wash away the banks of the stream, and, to prevent this, the city, in 1891 or 1892, constructed a conduit or underground waterway of solid masonry 5 1/2 feet in diameter on the inside, and cylindrical in form. The entrance to this conduit was immediately east of the east margin of State...