Bruce v. The City of Kansas City

• Citation: 276 P. 284,128 Kan. 13
• Decision Date: 06 April 1929
• Docket Number: 28,414
• Parties: DONALD EUGENE BRUCE, a Minor, by ALBERT BRUCE, His Father and Next Friend, Appellee, v. THE CITY OF KANSAS CITY, Appellant
• Court: United States State Supreme Court of Kansas

276 P. 284

128 Kan. 13

DONALD EUGENE BRUCE, a Minor, by ALBERT BRUCE, His Father and Next Friend, Appellee, v. THE CITY OF KANSAS CITY, Appellant

No. 28,414

Supreme Court of Kansas

April 6, 1929

Decided January, 1929.

Appeal from Wyandotte district court, division No. 2; FRANK D HUTCHINGS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MUNICIPAL CORPORATIONS--Governmental Functions--Maintenance of Dumping Grounds--Attractive Nuisance. In the maintenance of a free municipal dump in an out-of-the-way place off the public streets and not annoying to near-by residents, where the public were privileged to dispose of waste materials and miscellaneous rubbish, and where the city employed a dump master to show people where to unload, and whose duty it was to burn such rubbish as was combustible and to keep the dump in as good shape as the nature of the premises would permit, the city was exercising a governmental function; the dump was neither an attractive nuisance nor any sort of nuisance per se; nor was the city liable in damages to a boy who was permitted by his parents to go on the dump to play and who tripped and fell into a pile of hot ashes and was injured thereby. The cases of Roman v. City of Leavenworth, 90 Kan. 379, 133 P. 551; id., 95 Kan. 513, 148 P. 746; and Kansas City v. Siese, 71 Kan. 283, 80 P. 626, criticized and distinguished.

L. S. Harvey, Clyde C. Glandon and John C. O'Brien, all of Kansas City, for the appellant.

David F. Carson and Carl W. Fincke, both of Kansas City, for the appellee.

Dawson J. Harvey, J., not sitting.

OPINION

DAWSON, J.:

This was an action for damages on behalf of a child who was severely burned by falling into a pile of hot ashes on the municipal dump of Kansas City.

The pertinent facts were these: Along the right bank of the Missouri river at some distance northwest of its junction with the Kaw there is a tract of land belonging to the city which was dedicated by the founders of the town as a public levee for river traffic. (Kansas City v. Wyandotte County, 117 Kan. 141, 230 P. 79.) In an out-of-the-way place near the river on this unused levee, across some intervening railway tracks which skirt the edge of town, where its presence cannot annoy or offend the townspeople, the city maintains a municipal dumping ground of some four or five acres, the use of which is regulated by city ordinances. The public is given the right free of charge to deposit on this dump any sort of rubbish, waste and discarded materials except garbage and stuff likely to become noxious to public health. The city keeps an employee at the dump on week days, whose business it is to show people where to unload their rubbish, and it is his duty to burn whatever is combustible and to keep the premises as sightly as its nature will permit. Among the many users of the dump to get rid of waste materials were certain milling companies, and two days before the accident giving rise to this lawsuit one of these companies brought four loads of grain dust to the dump. The city's employee, known as the dump master, set fire to the dust on a Friday afternoon and it burned that day and Saturday. The dump master was on the premises until about 2:30 o'clock on Sunday afternoon. While such stuff had been known to smolder for several days, in this instance there was no smoke after the first day and the fire had transformed the pile of grain dust into whitened embers resembling "sand" according to plaintiff's petition, "a pile of brown stuff the color of the dust in the road" according to one witness, "a pile of gray, dusty brown-white ashes" according to another.

In a distant part of the city there resided one Albert Bruce with his wife and three small sons, the youngest of whom was this plaintiff, a child of five years. The father, Albert, was desirous of procuring a top for his automobile, and a friend told him he had gotten such a top at the city dump, so on the Sunday afternoon following the burning of the grain dust Albert and his family drove to the vicinity of the dump, parked their car and strolled along the edge of the dump. As Albert, the father, and his wife, who was leading this plaintiff by the hand, walked along by the edge of the dump the two older boys dropped behind to play in this pile of ashes. Their little brother, plaintiff herein, desired his mother to release him, which she did, and he stumbled and fell into the hot ashes. The mother testified:

"I was about eight or ten feet from the boys when I heard the scream; I had been leading the little boy and he wanted loose so I decided to let him go."

The plaintiff's brother testified:

"Saw the place where my brother got into and got burned; it was like a pile of dust; we boys stopped near the place; we were going to play in it; my little brother stumbled and fell into the fire, there was no smoke coming out of the fire. . . .

"I think my brother stumbled over a rock or a wire and when he went down he got up and got out and screamed and my father ran after him. He got out of the fire before my father came."

The father testified:

"I drove down Minnesota avenue to Third street, on east and across the railroad track and then I followed a road in northeasterly direction; the road was plain enough, although it was not what you would call a right smooth road; it was just a general road that the wagons would go in to the dump. The country down there is what you might say rough; when I got to the dump I stopped and I and my family got out; my three little boys were along. The boys were right along with us for a little ways, then they dropped behind; my wife and I went ahead. My attention was first attracted when I heard one of them scream; I turned around and saw this boy was in a pile of what proved to be fire; it just appeared to be a pile of brown stuff that looks as much like the dust in the road, the color of the dust in the road; I had just glanced at it in passing, I noticed a pile of stuff there; I did not notice anything there that indicated that it had fire in it; there was no guard or railing or anything around it to keep people from going around that or up to it, and there was nobody around there that said anything to me about going near that or keeping away from it or giving me any warning of any kind; there was no one came up there after the boy got into it; I did not see a soul around there in that particular neighborhood. I observed it more closely when I went back to the boy. I should judge that it was at least four and a half or five feet across it at the ground level, and appeared to be about two and a half feet in the center; it seemed to be dumped in a hole on one side; on the side where the road was it was only just a very little below the level of the road and on the other side there was quite a hole there; when I got back where the boy was he was standing in this brown substance that looked like road dust. The ashes, I suppose you would call them, were up something about half way between his feet and his knees; he was on his feet when I got back to him; his face and his hands were covered with what I supposed to be ashes. The weather was warm and he was barefooted. I don't know how the boy got in there or why he got in or anything of that kind; when I got to him I took him up in my arms; when I heard him scream I was possibly ten feet ahead of him; he was burned on the feet and legs, arms and hands. . . .

"Cross-examination:

"We got down to the city public dump something between four and five o'clock; I had never been there before. It is quite a little ways from Third and Minnesota over to where the dump was at that time. I would judge something like two blocks to the edge of the dump. . . . I left the car on the west side of the dump and I and my family went along the road across the dump. I noticed the hole there that the boy got into as I walked by; it was the only pile of stuff that looked like that; there were other piles of stuff there but not the same color; a pile about two and a half feet high and four and a half or something like that through."

Plaintiff's petition narrated the facts of the injury and alleged:

"That said place where said plaintiff fell into said burning refuse was apparently cold, charred and whitened embers only remained therein. That it was attractive to children and a place to play and naturally attracted the plaintiff to the place where the same was burned. . . .

"That said defendants carelessly and negligently failed and neglected to keep a watchman at said point where said refuse was burned close enough to warn plaintiff and other persons of his age from the dangers incident thereto, and from being around or about such places, and carelessly and negligently failed and neglected to in any manner guard said burning refuse at the place where plaintiff was burned . . . and carelessly and negligently failed and neglected to in any manner warn plaintiff of any danger . . . and carelessly and negligently failed and neglected to burn said grain dust and refuse in a reasonably safe place and in a reasonably safe manner and away from the likelihood of children of the age of plaintiff to come or to pass or to play."

Defendant joined issues on these allegations and the cause was tried before a jury which returned a verdict of $ 5,000 against the city, and judgment was entered accordingly.

The city assigns error in overruling defendant's motion for judgment on plaintiff's petition and opening statement and on overruling its demurrer to the evidence and on the general tenor of the court's instructions, but centers its principal argument on the broad proposition that a municipal corporation is not liable in damages for injuries sustained by children on a free public dump...