Capp v. City of St. Louis.

• Decision Date: 02 June 1913
• Citation: 158 S.W. 616
• Parties: CAPP et al. v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

158 S.W. 616

CAPP et al. v. CITY OF ST. LOUIS.

Supreme Court of Missouri.

June 2, 1913.

Rehearing Denied June 28, 1913.

1. NEGLIGENCE (§ 39)—PUBLIC PARKS—TURN-TABLE DOCTRINE.

The doctrine applicable to the "turntable" cases would not apply in an action for the death of children by drowning in a pond in a public park, since the children had both a legal and moral right to be there.

2. MUNICIPAL CORPORATIONS (§ 857)—PUBLIC PARKS—NEGLIGENCE—JURY QUESTION.

Evidence in an action against a city for the death of a child by drowning in a pool in a public park held to make it a jury question whether the city was negligent in not protecting or eliminating the pool.

3. MUNICIPAL CORPORATIONS (§ 851)—PARKS —MAINTENANCE.

A city must keep its public parks in a reasonably safe condition for the benefit of all persons using them.

4. MUNICIPAL CORPORATIONS (§ 857)—NEGLIGENCE — PUBLIC PARKS—SUFFICIENCY OF EVIDENCE.

Evidence in an action against a city for the death of a child by drowning in a pool in a public park held not to show that the child drowned in a stream above the pool, and its body washed down into the pool where it was found.

5. DEATH (§ 58)—CONTRIBUTORY NEGLIGENCE —PRESUMPTION.

It is presumed that one who met his death by negligence was exercising ordinary care at the time.

6. EVIDENCE (§ 60)—PRESUMPTIONS—COMMISSION OF CRIME.

It is presumed that one whose body was found in a pool in a public park was not assassinated, since the law never presumes that a crime was committed.

Lamm, C. J., and Graves and Brown, JJ., dissenting.

In Banc. Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by William Capp and others against the City of St. Louis. From a judgment for plaintiff, defendant appeals. Affirmed.

William E. Baird and Lambert E. Walther, both of St. Louis, for appellant. Taylor R. Young and Willard H. Guest, both of St. Louis, for respondent.

PER CURIAM.

The following attached opinion, written by WOODSON, J., in division, was adopted by the court in banc. All concur, except LAMM, C. J., and GRAVES and BROWN, JJ.

WOODSON, J.

The plaintiffs brought this suit in the circuit court of the city of St. Louis against the defendant to recover the sum of $10,000 damages sustained by them on account of the death of their minor son, Cecil Capp, caused by the alleged negligence of the city in not properly guarding a pool of water (which will be presently described) in Forest Park, in which the deceased fell and was drowned. A trial was had before the court and a jury, and after hearing the evidence and the instructions of the court, the jury found the issues for the plaintiffs, and assessed their damages at $2,500. Upon the verdict of the jury, the court rendered judgment for the plaintiffs, and after taking the proper preliminary steps therefor, the defendant duly appealed the cause to this court.

No question is raised as to the sufficiency of the pleadings, and we will, therefore, pass them by. The facts are practically undisputed, and are as follows:

The plaintiffs were husband and wife, and the deceased was their lawful son. The city of St. Louis is a municipal corporation organized and existing under the laws of the state of Missouri, known as the "Scheme and Charter." That Forest Park is a public park belonging to, and was under the management and control of, the city. Through the park ran a small stream of water known as the "River Des Peres." Many years prior to the happening of this unfortunate incident, the city constructed what is known in the record as "Euclid Avenue Storm Sewer," which drained a large part of the city of St. Louis, as well as a considerable part of the territory of St. Louis county, which emptied into the River Des Peres at a point in the park where the deceased was drowned. The park was large, having an area of more than 1,400 acres, and said river, in its ordinary stages, was insignificant, no larger than an ordinary creek, but in times of storm, the waters thereof accompanied with those of said sewer became and was a mighty torrent, swift, turbulent, and terrible in its flow to the Merricac and to the "Father of Waters." At the junction of said sewer with said river, the waters of the former, in full flow, had, many years prior to the accident, washed out the bed of the river and thereby caused to exist therein an excavation about 60 feet in diameter and of a depth varying from a few inches, at the outer margin, to some 10 or 12 feet in the center, which for years had been filled with water and refuse from said sewer and river. At the junction of the river and the sewer, the outlet thereof is about 10 feet in breadth and 14 in height, with per pendicular walls constructed of stone with cap rocks on top, which are about 18 inches higher than the adjacent surface of the ground. Immediately adjacent to the mouth of the sewer, there are four stone steps, 12 feet long and 6 inches thick, leading therefrom down to the water, two of which are generally covered with the water of the pool, and the other two are above the water line.

The River Des Peres is wholly unguarded in its entire length, as it passes through the park; and boys and children, with the knowledge if not the acquiescence of the city, have been in the constant habit of wading in the bed of said river, from early spring until late fall, and to skate thereon in the winter time. The park is one of the great public resorts of the world, constantly frequented by many men, women, and children. The World's Fair was held therein in 1904, which was visited by millions of people, and it has continued to be the greatest public resort of the city ever since. It is highly improved, carefully attended and cared for, constantly guarded and policed, by and at the great cost of the city. Some 200 feet from the mouth of the sewer, there is a fine spring, and a path leading therefrom, to the Lindall boulevard and Kingshighway entrances to the park, which passes within a few feet of the mouth of said sewer. This was the most frequented part of the park.

The last time the deceased was seen alive was July 10, 1908, when he and another boy named ______ Ulrich, about the same age, were seen by a mounted policeman named Hutton wading in said river about 100 feet above said pool. On or about the 12th day of July, the body of Ulrich was discovered floating in said pond, and when the father of Cecil Capp heard of that fact, knowing that the deceased and Ulrich left home together, he began to search the pond for his son, with the result that on the 15th of July, he found the body of his son therein. Both of them had been drowned. When discovered, the pants of the deceased were rolled up as far as they could be, and there was some evidence which tended to show that the sleeves of his shirt were likewise rolled up. The evidence also showed that boys and children generally were in the habit of wading in said river, and were in the habit of fishing for crawfish therein, and playing in and about the mouth of the sewer and on the steps mentioned. Such additional facts, as may be necessary for a proper disposition of the case, will be considered in the course of the opinion.

I. The city assigns but two errors in its brief, but discussed a third in the oral argument of the case in this court, namely, that there was no evidence of negligence on the part of the city in keeping, managing, and controlling the park. We will consider this question first, but preliminary thereto it should be borne in mind that the public parks of the cities, while designated for the use of all classes, nevertheless it is common knowledge that they are in fact more generally used and occupied by the middle and poorer classes of our citizens who have not the means to justify them in going to the mountains, the seashore, or foreign countries for rest and recreation, as is the custom and practice of the wealthy and more fortunate class.

During the open and warm seasons of the year the parks are usually filled with the women and minor children of the poor, and especially the latter, who are usually sent there alone for safety, recreation, and amusement, while their parents are down town earning their bread by the sweat of their faces. One of the most important, if not the principal quality or beneficial element of a public park, is the safety it throws around the unprotected youth and indiscreet of the state, placed therein by their toiling parents, chiefly for the safeguards supposed to be thrown around them and incidentally for play and recreation, while they, the parents, earn a living for themselves and children. Were it not for the supposed safety of the parks, the poor of the cities would be compelled to either personally guard their minor children, which would materially impair their earning power, or they would have to turn their children loose upon the public streets of the city where they would be constantly liable to come in contact with the numerous vices and dangerous agencies ever present therein. It is largely for this protection of life and limb, and the separation of the youth of the country from vice and dangers that these parks are created and maintained at such enormous cost and expense to the cities and people of the state, without which they would be absolutely worthless. That being unquestionably true, the public parks of the cities should be maintained in a reasonably safe condition for those who frequent and use them, and especially for the unprotected youth.

The evidence is undisputed that the city of St. Louis created and maintains this inexcusable nuisance, which is a constant menace to the lives of the children who visit Forest Park. Common sense and common experience teach us that this inexcusable nuisance can be abated at a trifling expense to the city, probably at a sum not to exceed one-half of the cost of defending this suit; and why should it not be done? It has already claimed for its vicious reward the lives of...