City of Nashville v. Burns

• Citation: 174 S.W. 1111,131 Tenn. 281
• Parties: MAYOR AND CITY COUNCIL OF NASHVILLE v. BURNS (TWO CASES).
• Decision Date: 24 March 1915
• Court: Supreme Court of Tennessee

174 S.W. 1111

131 Tenn. 281

MAYOR AND CITY COUNCIL OF NASHVILLE v. BURNS (TWO CASES).

Supreme Court of Tennessee.

March 24, 1915

Certiorari to Court of Civil Appeals.

Actions by John Pennington Burns, a minor, by next friend, and by the father of said minor, against the Mayor and City Council of Nashville, tried together. Judgments for plaintiffs in Circuit Court. From a dismissal of the suits on appeal to the Court of Civil Appeals, plaintiffs bring certiorari. Affirmed.

Pitts & McConnico and M. S. Ross, all of Nashville, for plaintiffs.

A. G Ewing, Jr., City Atty., F. M. Garard, Asst. City Atty., and M. T. Bryan, all of Nashville, for defendant.

NEIL C.J.

Defendant in error, a minor, sued by next friend to recover damages for injuries alleged to have been inflicted on him by the negligence of the city's agents in not sufficiently guarding the use of a swing in one of its parks. He recovered a verdict for $600. His father likewise sued for damages accruing to him by reason of the injury inflicted on his son and made a recovery of $200. The two cases were tried together. There was a motion for peremptory instructions in the trial court, which was there overruled, but, on appeal to the Court of Civil Appeals, the motion was sustained, and the suits were dismissed. The cases then came here on the writ of certiorari.

We are of the opinion that the Court of Civil Appeals reached the correct conclusion.

The city of Nashville owns and operates, for the benefit of the public, 18 parks and playgrounds without compensation. These parks are under the charge of a park commission, and policemen are assigned to them for the protection of visitors, and, generally, to insure good order.

The injury complained of occurred in a little park in East Nashville. It had been but recently opened. Among other means provided for the comfort of the people were certain swings. One of these was known as a baby swing. It was designed only for small children of from 5 to 7 years old; but, on the occasion in question, three larger boys, perhaps of 12 or 14 years, while using the swing, turned it over in trying to swing too high. Defendant in error, who was standing near the swing, was struck by it as it fell to the ground, and was seriously injured. At the time this accident happened lights had not yet been installed in the little park, and children were not expected to play there after dark. When the injury occurred, the seats had been taken from the swings and placed in a house near by, the attendant had left, and the park was considered closed. The boys, however, either remained in the park, or came in afterwards, and removed the swing in question from the place where it had been stationed, procured the seats, it having three, and began to use it, with the result stated, without the knowledge of the officers or agents of the city.

The principal negligence urged against the city was the permission given by the policeman in charge to large boys from time to time to use the baby swing, from which it is insisted they felt justified in using it on the occasion in hand.

We believe that a peremptory instruction might well have been based on the absence of any negligence of the city, even assuming that it was liable for the negligence of its agents in the management of parks. The learned Court of Civil Appeals, however, considered the question whether any liability existed at all against municipalities for injuries to persons frequenting parks by reason of the negligence of the servants of such corporations, and held that no such liability existed.

It is true there is great contrariety of opinion in the several courts of final resort in this country upon the question whether municipal corporations, in maintaining parks as resorts for the people, are in the discharge of a public duty, or one purely proprietary and ministerial. It is not our purpose to discuss this question at length, but only to indicate, in a general way, that we are in accord with those authorities which hold that such duty is a public one, based on the obligation of the municipality, as a branch of the state government, to guard and preserve, and maintain, the public health. Parks, in crowded cities, are eminently conducive to this purpose, as places to which the people may go and enjoy pure air, the sight of trees, grass, and flowers, and find the means of release for a time from the weight of care, rest from labor, relaxation for body and mind, and the recuperation of exhausted energies--all aids to health of incalculable value. We approve the following authorities on the subject: Harper v. Topeka, 92 Kan. 11, 139 P. 1018, 51 L. R. A. (N. S.) 1032; Board of Park Commissioners v. Prinz, 127 Ky. 460, 105 S.W. 948; Russell v. Tacoma, 8 Wash. 156, 35 P. 605, 40 Am St. Rep. 895; Blair v. Granger, 24 R.I. 17, 51 A 1042; Steele v. City of Boston, 128 Mass. 583; Clark v. Inhabitants of Waltham, 128 Mass. 567. We have read and considered the cases cited from other states, and, while conceding that they outnumber those we have mentioned, we do not think they are so well founded in principle. ...