Capp v. City of St. Louis

• Decision Date: 28 June 1913
• Parties: WILLIAM CAPP et al. v. CITY OF ST. LOUIS, Appellant
• Court: Missouri Supreme Court

158 S.W. 616

251 Mo. 345

WILLIAM CAPP et al. v. CITY OF ST. LOUIS, Appellant

Supreme Court of Missouri

June 28, 1913

Appeal from St. Louis City Circuit Court. -- Hon. J. Hugo Grimm Judge.

Affirmed.

Lambert E. Walther and William E. Baird for appellant.

(1) The court erred in refusing to instruct the jury at the close of all the evidence that the plaintiffs were not entitled to recover, and this because: (a) There was not one scintilla of evidence as to how the boy came to be in the pool. (b) Because in thus submitting the case to the jury, the jury were permitted to speculate as to the manner in which the boy came to be in the pool. (2) It is a well-settled rule that if an injury may have resulted from more than one cause, for one of which and not the other, the defendant is liable, it must be shown with reasonable certainty that the cause for which the defendant may be liable produced the result, and if the evidence leaves it to conjecture, the question cannot be submitted to the jury. Warner v. Railroad, 178 Mo 125; Epperson v. Telegraph Co., 155 Mo. 346; Smith v. Bank, 99 Mass. 605; Searles v. Railroad 101 N.Y. 661.

Taylor R. Young and Willard R. Guest for respondents.

(1) The appellant owed respondents the duty to exercise ordinary care, in the maintenance of Forest Park, to keep it free from the nuisance complained of. Carey v. Kansas City, 187 Mo. 715; Barthold v. Philadelphia, 154 Pa. St. 109; Indianapolis v. Emmelman, 108 Ind. 530; Price v. Water Co., 58 Kan. 551; McMahon v. Pekin, 154 Ill. 141; Stout v. Railroad, 17 Wall. 661; Edmondson v. Moberly, 98 Mo. 523; Lowe v. Salt Lake City, 44 P. 1050; Schmidt v. Distg. Co., 90 Mo. 294; Straub v. St. Louis, 175 Mo. 413; Williams, Municipal Liability for Tort, sec. 184. (2) The evidence was sufficient to go to the jury on the question, whether the deceased met his death by being drowned in the pool at the mouth of the sewer, by falling off the stone steps. Appellant admits in its answer the death of deceased was caused by drowning. The presumption is in favor of respondents that the deceased was exercising ordinary care for his own safety at the time he met his death. As the water became gradually deeper on either side of the pool up and down the River Des Peres and being at least six feet deep immediately off the stone steps, it will be presumed, until the contrary is shown (and that burden was on appellant) that deceased would not have deliberately waded beyond his depth, but rather fell off the steps and was drowned while playing thereon with his companion Ulrich, who was at the same time also drowned in the same pool. Buesching v. Gaslight Co., 73 Mo. 233; Lancaster v. Ins. Co., 62 Mo. 121; Weighman v. Railroad, 223 Mo. 718; McGahan v. Transit Co., 201 Mo. 507; Ekhard v. Transit Co., 190 Mo. 613. Even if this were not the law, appellant would still be liable according to its own theory, as the testimony shows the water above and below this pool for a distance of over 1000 feet was only from one foot to fifteen inches in depth; defendant having admitted in its answer deceased was drowned while wading in the River Des Peres. Indianapolis v. Emmelman, 108 Ind. 530; Pekin v. McMahon, 154 Ill. 141; Linnberg v. Rock Island, 157 Ill.App. 527.

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

OPINION

In Banc.

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 $ 2500. 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." 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, and 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 fourteen hundred 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 Meremac 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 sixty feet in diameter and of a depth varying from a few inches, at the outer margin, to some ten or twelve 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 ten feet in breadth and fourteen in height, with perpendicular walls constructed of stone, with caprocks on top, which are about eighteen inches higher than the adjacent surface of the ground.

Immediately adjacent to the mouth of the sewer, there are four stone steps, twelve feet long and six 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 great cost to the city.

Some two hundred feet from the mouth of the sewer, there is a fine spring, and a path leading therefrom, to the Lindell Boulevard and Kingshighway entrances to the park, 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 one hundred 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, 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 sea shore 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...