Dehanitz v. City of St. Paul
| Decision Date | 18 July 1898 |
| Docket Number | 11,114 - (178) |
| Citation | 76 N.W. 48,73 Minn. 385 |
| Parties | FRANK DEHANITZ v. CITY OF ST. PAUL |
| Court | Minnesota Supreme Court |
Action in the district court for Ramsey county by plaintiff, as administrator of the estate of Mary Dehanitz, deceased, to recover $5,000 damages for the death of plaintiff's intestate. Defendant demurred to the complaint on the ground that it failed to state a cause of action. From an order Willis, J., overruling the demurrer, defendant appealed. Reversed.
Death by Wrongful Act -- Slough Used as Dumping Ground -- Fall through Crust -- City not Liable.
Within the limits of the city of St. Paul, and between the banks of the Mississippi river, is a slough more than a quarter of a mile in length, which during high water fills with water, and has no outlet. There is an addition to St. Paul known as "Kinney, Bond & Trader's Addition," which includes this slough. The streets of this addition were dedicated to the public, but never were opened, kept or used as such by the city, although the tract is an open common. In this slough is an open basin 60 to 75 feet across, which is contiguous to James street. For a long time the city of St Paul has used this hollow basin as a place for dumping garbage and manure, and during high water it floats upon the water and forms a crust, upon which grows vegetation similar to that upon the surrounding land. The plaintiff's intestate, D., a girl 10 years old, left James street, upon which she had been traveling, and either for convenience or pleasure attempted to cross this crust on her way to a packing house one-fourth of a mile distant, when the crust broke, and she was precipitated into the water, and drowned. From the facts it did not appear that the public had ever traveled over this dumping ground, or used it as an open common. Held, that the city owed no duty of protection or warning in respect to D.'s going upon this dumping ground or crust as a traveler, and hence was not liable in damages for her death.
James E. Markham and Carl Taylor, for appellant.
The city owed no duty to deceased. The deceased was not injured while on the public street, but was crossing property which the city was using as a dumping ground. A permission from a property owner to a stranger to come upon his land does not impose a duty upon the owner to protect the stranger against dangers thereon. Akers v. Chicago, St. P., M. & O. Ry. Co., 58 Minn. 540; De Blois v. Great Northern Ry. Co., 71 Minn. 45; Murphy v. City, 118 N.Y. 575; Sweeny v. Old Colony, 10 Allen, 368; Clark v. Manchester, 62 N.H. 577; Knight v. Albert, 6 Barr, 472; Gillespie v. McGowan, 100 Pa. St. 144. If there was any negligence on the part of the defendant in this case, it occurred in the performance of a public governmental duty, -- that of providing for the public health, -- and for negligence in that respect the city is not responsible. Snider v. City of St. Paul, 51 Minn. 466; Bryant v. City of St. Paul, 33 Minn. 289; Keuhn v. City, 92 Wis. 263; Clark v. Manchester, supra.
Henry Conlin and Frank A. Hutson, for respondent.
The general rule or principle applicable to this class of cases is that an owner or occupant is bound to keep his premises in a safe and suitable condition for those who come upon and pass over them, using due care, if he has held out any invitation, allurement or inducement, either express or implied, by which they have been led to enter thereon. Sweeny v. Old Colony, 10 Allen, 368; Binks v. South Yorkshire, 32 L.J.Q.B. 26. The owner or occupant of premises owes some duty to a trespasser, and a much greater duty to a licensee; and the owner may not so maintain dangerous appliances or dangerous animals, or traps, or pitfalls, as to subject to injury persons innocently going upon the premises in either character. Emery v. Minneapolis Ind. Exp., 56 Minn. 460; Clarkin v. Biwabik-Bessemer Co., 65 Minn. 483; Driscoll v. Newark, 37 N.Y. 637; Larmore v. Crown Point, 101 N.Y. 391; Beck v. Carter, 68 N.Y. 283.
Deceased was a licensee, and entitled to protection as such. Harriman v. Railway, 45 Oh. St. 11; Broom, Max. 248; Mullaney v. Spence, 15 Abb. Pr. (N.S.) 319; Beaven v. Pender, 11 Q. B. Div. 503. The rule that a landowner is under no responsibility toward a person entering by mere permission upon his land is a satisfactory one in its application to some cases; but there are numerous exceptions to this rule. One such exception is found in cases where a trespasser's or licensee's presence has become known to the owner or occupant; after knowledge of his presence the owner or occupant is bound to exercise ordinary care to avoid injury to him. 1 Shearman & R. Neg. §§ 97, 98; Marble v. Ross, 124 Mass. 44; Daley v. Norwich, 26 Conn. 591; Lowe v. Salt Lake, 13 Utah 91; Clarkin v. Biwabik-Bessemer Co., supra. Another exception may be found in cases where the owner of premises has acquiesced in the use thereof for a long time as a footpath, or for other purposes, by the public; such owner is liable for injuries caused by dangerous agencies thereafter put in the way thus traveled. Oliver v. City, 102 Mass. 489; Beck v. Carter, supra; Crogan v. Schiele, 53 Conn. 186; 2 Shearman & R. Neg. § 705; Clarkin v. Biwabik-Bessemer Co., supra; Emery v. Minneapolis Ind. Exp., supra; Bransom v. Labrot, 81 Ky. 638; Mackey v. City, 64 Miss. 777; Bolch v. Smith, 7 Hurl. & N. 736; Larmore v. Crown Point, supra; Driscoll v. Newark, supra; Barry v. New York, 92 N.Y. 289; Powers v. Harlow, 53 Mich. 507; Davis v. Chicago, 58 Wis. 646; Penso v. McCormick, 125 Ind. 116; Harriman v. Railway, supra; Binney v. Carney, 46 N.Y.S. 307; Gaston v. Bailey, 14 Ind.App. 581; Wheeler v. St. Joseph, 66 Mo.App. 260; Kinchlow v. Midland, 57 Kan. 374; Union Pacific Ry. Co. v. McDonald, 152 U.S. 262. The rule is also modified in cases where children go upon premises as trespassers, but are allured there by some attraction, as in the well-known "turntable cases." Keffe v. Milwaukee & St. P. Ry. Co., 21 Minn. 207.
The place where deceased was drowned was a dangerous trap and pitfall. There are a great number of authorities holding property owners liable for injury caused by spring guns, and other agencies calculated to be dangerous to trespassers, and it is impossible to distinguish this case from them on principle. State v. Moore, 31 Conn. 479; Gray v. Combs, 7 J. J. Marsh. 478; Johnson v. Patterson, 14 Conn. 1; Marble v. Ross, 124 Mass. 44. But there is another class of cases more nearly allied to the present, where mantraps and pitfalls are maintained upon premises, not with the intention or design of causing injury, but in the careless use of the premises, unguarded and unprotected, and in such position that others are liable to be injured thereby. Penso v. McCormick, supra; Bennett v Railroad Co., 102 U.S. 577; Bransom v. Labrot, 81 Ky. 638; Hydraulic v. Orr, 83 Pa. St. 332; Schilling v. Abernethy, 112 Pa. St. 437; Union Pacific Ry. Co. v. McDonald, supra; Kinchlow v. Midland, 57 Kan. 374; Mackey v. City, supra; Bolch v. Smith, supra; Powers v. Harlow, supra; Davis v. Chicago, supra; Harriman v. Railway, supra; Loomis v. Terry, 17 Wend. 497; Binney v. Carney, supra; Gaston v. Bailey, supra; Wheeler v. St. Joseph, supra; Clarkin v. Biwabik-B. Co., supra.
The liability of the city of St. Paul in this case is that of a property owner. The negligence or liability in this case does not spring out of the acts of the health department in performing its duties, but out of the condition of the premises over which the city assumed control. The present case is not to be distinguished from failure to keep sewers in repair. See 2 Dillon, Mun. Corp. §§ 1049, 1051a. For injury suffered to person or property by a negligent construction of a sewer, or neglect to repair a sewer, a municipal corporation is liable. O'Brien v. City of St. Paul, 18 Minn. 163 (176); Hill v. Boston, 122 Mass. 344, 358.
The city is guilty in this case of having maintained a nuisance per se. Permitting the existence of this dangerous hole upon premises owned and controlled by the city constituted as much of a nuisance as a spring gun or trap; and a trap or spring gun would have been a nuisance, for injury caused by which the city would be liable. State v. Moore, 31 Conn. 479; Bird v. Holbrook, 4 Bing. 628; Ilott v. Wilkes, 3 Barn. & Ald. 304; Jordin v. Crump, 8 Mees. & W. 782; State v. Society, 42 N.J.L. 504; Cobb v. Inhabitants, 14 Me. 198; 1 Dillon, Mun. Corp. § 985a; 2 Wood, Nuis. § 832.
The defendant, a municipal corporation, demurred to the complaint in this action upon the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled, and defendant appeals.
There is a tract of land within the limits of the defendant city which is known as "Kinney, Bond & Trader's Addition to St. Paul." The street on said plat was dedicated to public use, but was never used nor maintained by the city, but it is alleged that for more than 20 years said platted land has been used as an open common by the public. Along the easterly boundary of said tract, bordering upon the westerly shore of the Mississippi river, is a public levee, laid out by the city, part of which is known as "James Street," dedicated and used as a highway. Extending through this tract of land for a distance of more than a quarter of a mile is a deep slough, which fills during high water, forms a large, deep pond, and has no outlet, and part of this tract is used by the city as a dumping ground for garbage and manure. At the northeasterly end of said slough is a grade made across said slough, about 15 feet wide, leaving a deep hole or basin about 60 feet across in one direction [73 Minn. 390] and 75 feet across in the other direction at the northeasterly end of...
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