Butz v. Cavanagh

• Decision Date: 09 February 1897
• Citation: 137 Mo. 503,38 S.W. 1104
• Parties: BUTZ v. CAVANAGH et al.
• Court: Missouri Supreme Court

38 S.W. 1104

137 Mo. 503

BUTZ v. CAVANAGH et al.

Supreme Court of Missouri, Division No. 1.

February 9, 1897.

NEGLIGENCE — PROXIMATE CAUSE — PUBLIC NUISANCE — DANGEROUS EXCAVATION — LIABILITY OF LANDOWNER.

1. Where a boy 12 years old voluntarily went into an excavation near a street on private property and burned his feet in a smouldering fire therein, the dangerous condition of the street, on account of steep banks at that place, if such condition existed, was not the proximate cause of the injury.

2. A city is not liable for injuries to private persons resulting from failure to enforce its police regulations for prevention and abatement of nuisances. Harman v. City of St. Louis (Mo. Sup.) 38 S. W. 1102, followed.

3. One who fails to fill or to inclose, by fence or wall, a dangerous excavation on his property in a city, as required by ordinance, is liable for injuries to a stranger resulting from such failure.

4. Where the owner of land in a city failed to guard a dangerous excavation on the land, as required by ordinance, he was not liable for injuries to a boy who was sui juris, and who voluntarily went into the excavation to get a piece of wire, and burned his feet in a smouldering fire therein.

Appeal from circuit court, St. Louis county; Rudolph Hirzel, Judge.

Action by Charles Butz, by his next friend, August Butz, against Timothy Cavanaugh and others for personal injuries. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

W. C. & J. C. Jones and C. C. Kidd, for appellant. Lubke & Muench and W. C. Marshall, for respondents.

MACFARLANE, J.

Plaintiff, a minor, by his next friend, prosecutes this suit to recover of defendants damages on account of having his feet badly burned by reason of the alleged negligence of defendants. The defendants are Timothy Cavanagh, the owner of an old rock quarry, the Cavanagh Construction Company, a corporation, and lessee of said quarry, and the city of St. Louis. An old quarry about 60 feet deep, and about one block in area, constitutes the dangerous property complained of. The property was surrounded on the east by Glasgow avenue, on the south by Madison street, on the west by Garrison avenue, and north by Magazine street. The wall of the quarry on Harrison avenue was nearly perpendicular, and was protected by a fence. Magazine street was only partially improved. From this street the quarry was used, by authority of the defendants, as a public dumping place for all kinds of débris gathered from streets, alleys, and back yards. This was burned, and there were frequently smouldering fires therefrom. Along the street into the quarry the banks were steep, but sloping. Generally, a watchman was kept at this dump to direct the unloading of the débris thrown into it. There was no fence or other protection on this, the south, side of the quarry. Boys sometimes visited this dumping place to look for cans, wire, and other articles thrown out there. On the 9th day of September, 1893, plaintiff was 12 years of age, and lived with his parents about two blocks south of the quarry. He had, about two weeks before, been warned by his father not to go about the dump, as he was liable to get burned. On said day he and two companions were on Magazine street about its junction with Garrison avenue, and he saw, about the bottom of the embankment, some wire, which he concluded to get. He ran down the embankment, and about two-thirds of the way down stepped with both feet into a smouldering fire, or hot ashes, and being barefooted, his feet were severely burned. The watchman was not present. These, briefly stated, are the facts developed at the trial.

Certain ordinances of the city were read in evidence defining nuisances and providing for their abatement, and requiring holes and other dangerous places to be properly inclosed with fences or walls. Two sections of these ordinances read as follows:

"Sec. 619. All holes, depressions, excavations or other dangerous places within the city of St. Louis that are below the natural or artificial grades of the surrounding or adjacent street, shall be properly inclosed with fences or walls, or be filled up so as to prevent persons or animals from falling into them.

"Sec....