City of Anadarko v. Swain

• Decision Date: 25 August 1914
• Docket Number: 3513.
• Citation: 142 P. 1104,42 Okla. 741,1914 OK 381
• Parties: CITY OF ANADARKO v. SWAIN ET AL.
• Court: Oklahoma Supreme Court

142 P. 1104

42 Okla. 741, 1914 OK 381

CITY OF ANADARKO v. SWAIN ET AL.

No. 3513.

Supreme Court of Oklahoma

August 25, 1914

Syllabus by the Court.

Where in an action for damages for the death of their eight year old minor son, the plaintiffs show that the city maintained a public park within the corporate limits of the city of Anadarko, and had constructed within the boundaries of said park a settling basin or reservoir in connection with its waterworks system, and had placed a high wire fence around the base of the incline of said settling basin for the purpose of avoiding injuring the public, and the evidence further shows that, just prior to the death of said child the agents and employés of the city removed a large portion of said fence, and negligently allowed the same to remain down for a long period of time, and during said time the minor son of the plaintiffs went into the park and on to the grounds used for waterworks purposes and was attracted to the reservoir by his curiosity and childish instinct and was drowned, held, that the child was upon the premises by express invitation, and the city owed to him the duty of using ordinary care to avoid injuring him while on the premises.

Commissioners' Opinion, Division No. 1. Error from the District Court, Caddo County; J. T. Johnson, Judge.

Action by John M. Swain and another against the city of Anadarko. Judgment for plaintiffs, and defendant brings error. Affirmed.

Bristow & McFadyen, of Anadarko, for plaintiff in error.

Louie E. McKnight and W. R. Wheeler, of Anadarko, for defendants in error.

RITTENHOUSE C.

The only question necessary for a determination of this case is the duty a municipality owes to the public in maintaining its public parks and waterworks system. The maintenance of a public park in a populous city is not only an implied but an express invitation to the public to resort to it for amusement and recreation, and, where children of tender years and immature minds are invited to play and amuse themselves the parents have a right to rely on the city to exercise reasonable or ordinary care to keep the park and waterworks system safe for the benefit of those who come there by such express invitation. It is said in Thompson on Negligence, § 968, that the owner of real property is under the duty of exercising reasonable or ordinary care and prudence to the end of keeping his premises safe for the benefit of those who come upon them by his invitation, express or implied; and if through neglect of this duty, they are, without negligence or fault of their own, injured by reason of any negligent defect thereon, he must pay damages. Oliver v. Worcester, 102 Mass. 489, 3 Am. Rep. 485; Bennett v. Louisville R. Co., 102 U.S. 577, 26 L.Ed. 235; Diamond State Iron Co. v. Giles, 7 Houst. (Del.) 557, 11 A. 189; Welch v. McAllister, 15 Mo.App. 492; Atlantic Cotton Seed Oil Mills v. Coffey, 80 Ga. 145; 4 S.E. 759, 12 Am. St. Rep. 244; O'Donnell v. Patton, 117 Mo. 13, 22 S.W. 903; Harriman v. Pittsburgh R. Co., 45 Ohio St. 11, 12 N.E. 451, 4 Am. St. Rep. 507; Carey v. Kansas City, 187 Mo. 715, 86 S.W. 438, 70 L. R. A. 65; Elam v. Mt. Sterling, 20 L. R. A. (N. S.) 574, note; Faurot v. Okla. Wholesale Gro. Co., 21 Okl. 104, 95 P. 463, 17 L. R. A. (N. S.) 136.

The evidence in this case shows that the city was the owner of a large public park, to which it had expressly invited the public for amusement and recreation, and the city had constructed within the boundaries of...