Carey v. Kansas City

• Decision Date: 30 March 1905
• Citation: 187 Mo. 715,86 S.W. 438
• Parties: CAREY et al. v. KANSAS CITY.
• Court: Missouri Supreme Court

86 S.W. 438

187 Mo. 715

CAREY et al. v. KANSAS CITY.

Supreme Court of Missouri, Division No. 2.

March 30, 1905.

MUNICIPAL CORPORATIONS—PARKS—PLACES OF DANGER—RESERVOIRS—DUTY TO ERECT BARRIERS.

1. A city reservoir situated in, or adjacent to, and in the same block with, a public park, is a place of danger to persons, and particularly children who may frequent the park, which it is the duty of the city to surround by sufficient safeguards to protect such persons and children from injury; but such duty is fulfilled by the exercise of reasonable care in the construction of barriers around the reservoir for the prevention of danger.

2. The burden is on one suing a city for damages caused by its negligence in failing to properly inclose a reservoir situated in a public park to show the negligence complained of.

3. A city made a park of a square in which a reservoir was situated. Watchmen were placed in the park, who attended both to the park itself and to the reservoir, and, in order to prevent injury or accident, a woven wire fence 4½ feet high was built around the reservoir. Children sometimes climbed over this fence to catch fish and stone frogs, although they were frequently chased away by the watchmen, and knew that they were not allowed inside the same. It was also difficult for them to climb the fence, as they had to remove their shoes to do so. Held that, as against a child 11 years old, who had been personally chased away from the reservoir by a watchman, and nevertheless climbed over the fence, fell into the reservoir, and was drowned, the city, as a matter of law, was guilty of no negligence.

Appeal from Circuit Court, Jackson County; James Gibson, Judge.

Action by John Carey and another against Kansas City. From a judgment for plaintiffs, defendant appeals. Reversed.

This action was brought in the circuit court of Jackson county, Mo., by John Carey and Mary Carey, his wife, in September, 1900. On May 22, 1901, the plaintiffs filed an amended petition, which is shown in this record, and upon which the case was tried. The plaintiffs are the parents of Maurice Carey, their 11 year old son, who was drowned in what is known as "Observation Park Reservoir," in Kansas City, on the afternoon of August 1, 1900. The reservoir is the property of the defendant, Kansas City. This reservoir was created over 20 years ago, and occupied the south half of the block bounded by Twentieth street on the north, Twenty-First street on the south, West Prospect on the east, and Holly street on the west. This block is the summit of a hill, and prior to the year 1899 the edges of the reservoir could be reached only by scaling the side of the hill and then climbing up the parapet of earth surrounding the basin, which is about 25 feet deep. During this time a hedge fence, interlaced with barbed wire, surrounded the block at the base of the hill at or near the street line. In the spring of 1899 Kansas City passed an ordinance creating a park out of the north half of this block, and placing the land under the control of the park commissioners. The hedge fence at the bottom of the hill was removed, a fancy stone retaining wall with wide ascending steps from Twentieth street was constructed at the north end of the property, and the hitherto vacant half block was converted into a small park with fountain, walks, seats, etc. The water department of Kansas City co-operated with the park board, constructed a gravel walk 10 feet wide around the edge of the reservoir, and graded its north embankment so that the walk (or parkway as it is described in the petition) was reached by walking up a gentle slope from the park. While it appears that the reservoir occupied the south half of the block, and was controlled by the water department, and that the park board controlled or managed the north half of the tract, where the city had created a park, it is indicated by the testimony, by the close connection of the reservoir and park, and the fact of the improvement of the walk around the reservoir, that the entire tract was looked upon by the public as a park. In fact, the water department, by erecting a gravel walk 10 feet wide around the edge of the reservoir, had a tendency to induce the public to believe that the entire premises were used as a resting place for the public. The wall of the reservoir all around was capped with a stone coping, about two feet wide, extending three inches beyond the wall on the inside. This coping was about level with the walk outside. On the outer edge of this coping the city, in 1899, erected a woven wire fence about 4½ feet high. There were also watchmen to keep a watch about the park and reservoir, but the testimony shows they were not at all times around the reservoir. It further appears that the top of the coping on the inside of the fence was about 18 inches wide. There were a number of children that frequented this park, and a number of them would climb over the fence, to walk around on the top of this coping, and to fish and throw stones at frogs. The watchmen had frequently chased them away, and there is no question but what the children knew they were not allowed inside of the fence. In fact, Fred Miller, one of the boys who testified in behalf of the plaintiffs, stated that the watchman had run Maurice Carey, plaintiffs' son, from the inside of the fence, some time before he was drowned. It further appears from the testimony that this fence could not be climbed by boys unless they removed their boots or shoes. On the day the boy was drowned the water in the reservoir was about 20 feet deep. Plaintiffs' son and a number of other boys were playing in the park about the reservoir, and one of the boys crippled a frog with a stone. The little boy Maurice Carey climbed over the fence to the ledge inside, and then stepped down to the slanting part of the basin, and reached out with a stick to get the frog. His feet slipped, and he went down into the depth of the reservoir, and all attempts at his rescue were unavailing, and he was drowned.

This action was brought by his parents for damages for his death, which they allege was due to the negligence of the city as specified in their amended petition. The defendant's answer was a general denial and a special plea of contributory negligence of the drowned boy. The reply was a general denial of this special plea. The negligence of the defendant complained of is thus stated in the petition: "Plaintiffs, for cause of action, state that said park and said reservoir were very attractive to the children in the vicinity, and that said children were accustomed to resort to said park and parkway and the edge of said reservoir to play; that said reservoir was at all times filled with water to the depth of ten feet or more, and had steep and abrupt walls around it, all of which the defendant well knew, or by the exercise of reasonable and ordinary care might have known, a long time prior to August 1, 1900. Plaintiffs further state that it was the duty of the defendant to erect and maintain a proper and sufficient wall or fence at or near all the edges of said reservoir, and particularly at and near the north edge, to prevent children who were playing along the edges of said reservoir or who were playing in said park or parkway, from falling into the same and being drowned, and also to have said reservoir properly watched and guarded to prevent children from climbing over said fence and falling into the water. Plaintiffs further state that the defendant carelessly and negligently failed to provide a proper or sufficient fence or wall on all the edges of said reservoir and between it and said park and parkway, and negligently and carelessly failed to have said reservoir properly watched and guarded for the protection of children as aforesaid, and that on or about the 1st day of August, 1900, the plaintiffs' son, Maurice Carey, deceased, as aforesaid, while playing in said park and parkway about said reservoir and at or near the north edge thereof, fell into the same, and was drowned, and died, by reason of the negligence and carelessness of the defendant in failing to maintain a proper and sufficient fence at a proper place along the edges of said reservoir, and in failing to have said reservoir properly watched and guarded as aforesaid."

At the close of the evidence, the court, at the request of plaintiffs, gave instructions numbered 1, 2, and 3, as follows: "(1) The court instructs the jury that in determining whether or not the plaintiffs' deceased son, Maurice Carey, was guilty of negligence contributing to his death, the jury will take into consideration his age, capacity, knowledge, and experience; and the jury are further instructed that if the plaintiffs' deceased minor son was at the time he received the injuries complained of and immediately before that time exercising such care for his own safety as boys of his age and intelligence ordinarily exercise under the same or similar circumstances, then he was not guilty of negligence contributing to his death. (2) The court instructs the jury that if you find for the plaintiffs you may award them such damages, not exceeding $5,000, as you may deem from the evidence will compensate them for the loss of their said minor son's probable earnings and services until he would have arrived at the age of twenty-one years, and for burial expenses, if any were incurred by them by reason of his death, less the reasonable costs of his support and education during his minority. (3) By `negligent' or `negligence,' as used in these instructions, is meant the lack of ordinary care, and ordinary care is the care which ordinarily careful and prudent persons would use under the same or similar circumstances." The defendant requested the court to give instructions numbered 1, 2, 3, and 4, as follows: "(1) Now at the close of all the evidence the court instructs the jury that under the pleadings and evidence in this case your...