Davoren v. Kansas City
| Decision Date | 13 April 1925 |
| Docket Number | No. 23996.,23996. |
| Citation | 273 S.W. 401 |
| Parties | DAVOREN et al. v. KANSAS CITY. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Jackson County; James H. Austen, Judge.
Action by Albert J. Davoren and another against the City of Kansas City. Judgment for plaintiff, and defendant appeals. Affirmed on condition of remittitur.
John B. Pew, Ills M. Lee, and Solon T. Gilmore, all of Kansas City, for appellant.
Hogsett & Boyle, of Kansas City, for respondents.
Statement.
This was a suit instituted in the circuit court of Jackson county by the plaintiffs, husband and wife, against Kansas City, the defendant, for the alleged negligence in drowning their minor son, 6 years and 7 months old. The case was tried before the court and jury, which resulted in a verdict and judgment for the plaintiffs for $10,000, and, after moving unsuccessfully for a new trial, the defendant duly appealed the case to this court.
The pleadings are unassailed, and therefore it would be useless to notice them.
The facts of the case are simple and practically undisputed. The name of the dead child, for whose life the parents sued, was Karl Davoren, who had a twin brother named Kenneth, who was also drowned at the same time and place that Karl lost his life. They came to their death by drowning in a pond, which was created by the city constructing a high fill or dam across a ravine, for street purposes, on top of which a street was duly constructed. The city neglected to provide a culvert or other outlet sufficient to allow the surface water to escape therefrom that accumulated above said fill. Said pond of water was entirely upon private property, and was not so closely located to a public street as to endanger the lives of the deceased children by falling into it while passing along the street.
The pond was located on the south side of Twenty-First street, between Bales avenue and Askew street, in Kansas City. Bales avenue and Askew street run north and south, and Twenty-First street runs east and west, and crosses Bales and Askew. In the space between Bales and Askew the natural topography of the land is in the form of a ravine or draw several blocks long, running in a northerly and southerly direction. The natural drainage of surface water through this ravine or draw was toward the north. The ravine began at Twenty-Fifth or Twenty-Sixth street, which is 4 or 5 blocks south of Twenty-First street, and extended north to Eighteenth street, making the ravine about 8 blocks in length. The ravine drained all of that territory lying between Twenty-Sixth street on the south, Bales avenue on the west, Askew street on the east, and Eighteenth street on the north—a territory comprising 8 square city blocks; 4 or 5 of these square blocks lay south of Twenty-First street.
feet across at its widest point, measuring east and west, and about 200 feet north and south. The contour and appearance of the pond are shown by the diagram and by the photographs in evidence. The pond was right up against the embankment of the fill; that is, the embankment formed the north shore of the pond.
The defendant, city, apparently recognized its duty not to dam up, surface water on the abutting property, for when it constructed the fill it put a pipe through the fill to drain off the surface water. But the pipe was too small, and was wholly inadequate to drain away the water that accumulated. When the pond once formed it remained there as a permanent thing for the 19 years preceding the drowning of plaintiffs' two boys. The pond remained there from 1901, when the fill was constructed, until March, 1920. Nothing was done by the defendant, city, to remedy the situation prior to the death of the boys. The pond was 15 feet deep in the middle.
The surrounding neighborhood was a thickly populated residence district of the city. During all these years, it was a common practice for children in the neighborhood to play upon and about the pond, swiming in the pond in summer, and playing on the ice in winter.
This dangerous condition was specifically reported to the city engineer's office at the city hall by one of the neighbors 15 or 16 years before the drowning of plaintiffs' sons. The engineer's office promised that the matter would be attended to. It was impressed upon the engineer's office that it was an absolute necessity to have the pond drained on account of the danger to children and on account of the foul smell. In addition, one of the neighbors notified a city policeman about the matter. Nothing was ever done, however, by the city authorities, to rectify the dangerous condition prior to the drowning here in question.
Plaintiffs' boys were drowned on March 8, 1920, while playing upon the ice of the pond. The two boys were 6 years and 7 months old at the time of their death. They came home from school at about 3 o'clock in the afternoon, and, after getting something to eat and changing their clothes, went out to play; their mother at the time being engaged in preparing the evening meal. About 15 or 20 minutes later a neighbor boy came and reported to the mother that her two little boys were drowned in the pond. The pond was not in sight of plaintiffs' residence, and neither of the plaintiffs knew of the existence of the pond.
An eyewitness, Earl Cook, testified to the drowning of the boys. This witness Was walking east along the south sidewalk of Twenty-First street at the time. When he first saw the boys they were playing on the ice, throwing a bottle across the ice. One of the boys was running after it, and the other one was running after him, possibly 8 or 10 feet behind. The first little fellow went through the ice about midway of the pond, and the other one was running so close to him he could not stop, and ran in after him. The second little boy clung with his fingers to the edge of the broken ice for a short space. In the meantime Cook immediately ran down the bank and ran in upon the ice, in the effort to rescue the boys. He got possibly half way from the bank to where the second little boy was clinging, when the ice broke and allowed Cook to go through. Both boys were drowned under his very eyes, but he was helpless to rescue them. The bodies of the boys were rescued from the water by the fire department by means of hooks and ropes.
The next day after the drowning, and two months before plaintiffs served any notice on the city of their intention to bring this suit, the city's claim department began taking numerous photographs of the pond. At the trial, however, the city made no attempt to excuse itself from the charge of negligence in creating this dangerous nuisance, and stood mute, offering no evidence whatever.
At the close of all the evidence the appellant asked a demurrer to the respondents' evidence, which the court refused, and counsel for the former duly excepted.
Opinion.I. Counsel for appellant insist that the trial court erred in refusing its demurrer, offered to respondents' evidence at the close of their case, for the reason stated, that the pond was located wholly upon private property, and that the accident did not result from any use of a street, and under all the facts there was no duty owing the deceased, and hence no liability rested upon the appellant.
In support of that contention counsel for appellant cite the following cases: Arnold v. City of St. Louis et al., 152 Mo. 173, 53 S. W. 900, 48 L. R. A. 291, 75 Am. St. Rep. 447; Overholt v. Vieths, 93 Mo. 422, 6 S. W. 74, 3 Am. St. Rep. 557; Moran v. Pullman Car Co. et al., 134 Mo. 641, 36 S. W. 659, 33 L. R. A. 755, 56 Am. St. Rep. 543; Kelly v. Benas, 217 Mo. 1, 116 S. W. 557, 20 L. R. A. (N. S.) 903; Hight v. Bakery, 168 Mo. App. 431, 151 S. W. 776; Buddy v. Terminal Ry. Co., 276 Mo. 276, 207 S. W. 821; State ex rel. Kansas City v. Ellison, 281 Mo. 667, 220 S. W. 498; Rallo v. Herman Const. Co. et al., 291 Mo. 221, 236 S. W. 632; City of Omaha v. Bowman, 52 Neb. 293, 72 N. W. 316, 40 L. R. A. 531, 66 Am. St. Rep. 506; Reeder v. City of Omaha, 73 Neb. 845, 103 N. W. 672; Murphy v. City of Brooklyn, 118 N. Y. 575, 23 N. E. 887; Von Almen's Adm'r v. City of Louisville, 180 Ky. 441, 202 S. W. 880; Peters v. Bowman, 115 Cal. 345, 47 P. 113, 56 Am. St. Rep. 106; Tavis v. Kansas City, 89 Kan. 547, 132 P. 185; Harper v. City of Topeka, 92 Kan. 11, 139 P. 1018, 51 L. R. A. (N. S.) 1032; Schauf's Adm'r v. City of Paducah, 106 Ky. 228, 50 S. W. 42, 20 Ky. Law Rep. 1796, 90 Am. St. Rep. 220; Gillespie v. McGowan, 100 Pa. 144, 45 Am. Rep. 265; Dehanitz v. City of St. Paul, 73 Minn. 385, 76 N. W. 48; Klix v. Nieman, 68 Wis. 271, 32 N. W. 223, 60 Am. St. Rep. 854.
All of these cases proceed along the line that the appellant was not required to fence or otherwise protect nuisances, or to secure dangerous places upon their private property from trespassers or other persons who might be thereon without the authority or permission of the respective owner thereof.
Generally speaking, and as an abstract legal proposition, those cases announce a correct legal proposition, but in my opinion they state the...
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