Charvoz v. Salt Lake City

• Decision Date: 28 April 1913
• Docket Number: 2423
• Court: Utah Supreme Court
• Parties: CHARVOZ v. SALT LAKE CITY

131 P. 901

42 Utah 455

CHARVOZ v. SALT LAKE CITY

No. 2423

Supreme Court of Utah

April 28, 1913

APPEAL from District Court, Third District; Hon. C. W. Morse, Judge.

Action by Maurice A. Charvoz against Salt Lake City.

Judgment for plaintiff. Defendant appeals.

REVERSED AND REMANDED, WITH DIRECTIONS TO GRANT A NEW TRIAL.

H. J Dininny, City Attorney, and Aaron Myers, Assistant, for appellant.

M. E Wilson for respondent.

FRICK J. McCARTY, C. J., and STRAUP, J., concur.

OPINION

FRICK, J.

This is an action brought by respondent, as parent, to recover damages for the death of an infant child, whose death, it is alleged, was caused through the negligence of the appellant, a municipal corporation. After stating the necessary matters of inducement, the acts of negligence relied on are alleged in the complaint as follows: "That the said city further owned, controlled, and maintained at the intersection of Eighth North and Third West Streets a certain culvert conveying a stream of hot sulphur water, which stream was likewise owned, controlled, and negligently maintained by the above-named city along the north side of Eighth North between Second West and the west side of Third West Street; that the said stream of water was from ten inches to a foot in depth, and was negligently left by said city open and uncovered, and that the same was attractive to children, and should have been covered; and that the said culvert through which the stream of water was conducted by the said city was negligently left without any guards or other protection or means to prevent a person of the deceased's description from passing into said culvert."

It is then further alleged that on the 26th day of October, 1910, the infant child of respondent, of the age of upwards of seventeen months, fell into the "stream" of water, aforesaid, and was drowned, and that by reason of her death respondent was damaged, etc.

The appellant filed an answer to the complaint, in which it denied substantially all the material allegations, and as an affirmative defense pleaded contributory negligence on the part of both the respondent and the mother of the child, who was its custodian.

A trial upon these issues to a jury resulted in a verdict in favor of respondent for the sum of $ 1000. The court entered judgment upon the verdict, and appellant presents the record to this court on appeal and asks us to reverse the judgment.

The evidence upon which the verdict of the jury and judgment are based is, in substance as follows:

The respondent with his family, consisting of a wife and five children, ranging in age from nine years, the oldest, down to seventeen months and a few days, the youngest, the latter being the child in question, for several years lived on West Eighth North Street, near Third West Street, in Salt Lake City. His house was on the north side of the street, facing south. In front of the house, in the street, from six to eight feet from the sidewalk, at the point where the gutters are customarily and usually placed in the streets of Salt Lake City, there was a ditch about one foot deep and about eighteen inches wide, in which there was constantly flowing a stream of warm water which came from what is known as the warm springs, which are situated on the east side of North Second West Street, and, as near as we can get at the exact distance from the record, respondent's house is between 600 and 800 feet in a northwesterly direction from said springs, and the place where the child was found dead, as hereinafter stated, is about 100 or 125 feet farther there-from. The water of the springs comes out of the earth at a temperature of about 112 degrees Fahr., and where it leaves the bathhouse on its way into the ditch in question, running in front of respondent's house, the water has a temperature of from 103 to 105 degrees Fahr. Excepting where the water flows across Second West Street, it flows in an open ditch after it leaves the warm springs, and is necessarily somewhat cooler when it passes respondent's house. The water is what is known as white sulphur water, and it is used for bathing purposes and leased by the city to others. Some people drink the water, and a very large number bathe in it, and many of the bathers remain in the water, respondent said, who worked in the bathing establishment, from "three to four hours at a time." The amount of water flowing from the warm springs into the ditch is about 1.7 or 1.8 second feet, making a stream of water from six to eight inches deep and about eighteen inches wide. The banks of the ditch and the depth thereof are somewhat irregular, so that the water at places is deeper than at others. When the weather is cool or cold, some steam or vapor arises from the water. The fall of the ditch varies; the greatest fall being in front of respondent's dwelling, where it is about three and one-half per cent., and less than that above and below that point.

On October 26, 1910, about three minutes before twelve o'clock, noon, the wife of respondent and mother of the deceased child, named Ruth, was at or near the front door inside of her house, combing the hair of one of Ruth's little sisters. At that time Ruth was immediately in front of the house on the sidewalk leading from the front door to the sidewalk in the street running east and west in front of the lot, playing with a little boy and girl, both older than she. A few minutes after twelve o'clock the mother missed Ruth and at once started to look for her. She saw the little boy and girl with whom Ruth had been playing going in an easterly direction, and the mother started westerly, going to Third West Street, which was about 100 or 125 feet west of her house, and from there she went a little ways north and looked and called for Ruth, but did not see her, when she retraced her steps southerly, and in approaching the ditch she saw the child lying in the water at the west end of the culvert spoken of in the complaint, which was placed across the ditch or stream at the point where the sidewalk running north and south on Third West Street would run if it were extended in a southerly direction. When the mother found the child, it seemed lifeless, and although a doctor was sent for immediately to St. Mark's Hospital, which was about a block distant from where the child was found, all efforts to revive the child failed.

The mother testified that the child "had never been near the ditch before;" that it feared the ditch. Indeed, the mother testified that all of her children feared the ditch, and none ever fell into it. Respondent testified that several families lived along the street where the ditch in question is located; that the children would play in the street and on the sidewalk, which is about eight feet distant from the ditch, but when he was asked if any of those children ever played "in close proximity to the stream" he left the question unanswered. There is no evidence that any child or children ever fell into the ditch, or in the water running therein, or that any of them were actually attracted by the water flowing in the ditch at any time. A lady, who lived about 300 or 400 feet in a northwesterly direction from respondent's house on Third West Street, stated the time of the day when the mother found the child in the ditch, as aforesaid, to have been a little later than the mother stated it to have been. This lady also testified that little Ruth was quick and active on her feet; that she at times would go to the lady's house alone. Both the respondent and his wife also said that the little girl was very active on her feet.

Upon substantially the foregoing evidence the respondent rested, and appellant's counsel interposed a motion for a nonsuit upon various grounds, but principally that there was no evidence of negligence. The motion was denied. The appellant then introduced some evidence, but it is not necessary to refer to it, except to state that from it it appeared that by actual measurement the amount of water flowing in the ditch from the warm springs was constant, and would be increased only now and then temporarily by reason of storms; that the volume of water passing through or under the culvert where the child was found was four inches deep and twenty inches wide; that the greatest velocity of the stream was about five and one-half feet per second, but at the culvert it was considerably less, because there was much less fall at that point; that there were about 500 miles of similar ditches in Salt Lake City; and that the culvert where the child was found was precisely the same in size and structure as were all such culverts on the line of side-walks crossing the gutters or ditches. These facts were all practically conceded by respondent's counsel.

After introducing the foregoing evidence, in connection with other evidence, which it is immaterial to refer to, appellant also rested, and requested the court to direct the jury to return a verdict in favor of appellant upon the grounds specifically set forth in the motion, the gist of which is that respondent had failed to make a case for the jury.

The district court, in passing upon the motion to direct a verdict, in part, said: "I ruled upon the nonsuit as I did for the reason that the Supreme Court (this court) has decided in the Brown Case (Brown v. Salt Lake City 33 Utah 222 [93 P. 570, 14 L. R. A. (N. S.) 619, 126 Am. St. Rep. 828, 14 Ann. Cas. 1004]) that certain things maintained by the city were attractive to children of immature years, and were dangerous in themselves, therefore coming within what is commonly called the turntable cases and cases that have followed those cases. Then they (this court) proceeded to say that turntable cases ought not to be confined to dangerous...