Fiel v. City of Racine

• Court: United States State Supreme Court of Wisconsin
• Writing for the Court: FOWLER
• Citation: 203 Wis. 149,233 N.W. 611
• Parties: FIEL v. CITY OF RACINE.
• Decision Date: 09 December 1930

203 Wis. 149
233 N.W. 611

FIEL
v.
CITY OF RACINE.

Supreme Court of Wisconsin.

Dec. 9, 1930.

Appeal from a judgment of the Circuit Court for Racine County; George Thompson, Circuit Judge, presiding.

Action by Elizabeth Fiel against the City of Racine. Judgment for plaintiff, and defendant appeals.--[By Editorial Staff.]

Reversed with directions.

Action commenced October 23, 1929; judgment for plaintiff entered February 28, 1930. Defendant appeals.

The action is to recover on the ground of negligence for the death of plaintiff's eleven year old son who was drowned by falling from a raft on a pond on city owned property near a clear well maintained in connection with the city owned waterworks.

Trial was before a jury, but on motion of both parties for a directed verdict the jury was discharged and findings were made by the court which are supported by the evidence. From the findings and the undisputed evidence it appears that the pond formed by water seeping in after the city excavated sand from the adjacent beach to bank the sides of the well to prevent its freezing. The pond appeared shallow, and was shallow for the most part; but where the boy drowned was about 5 to 5 1/2 feet deep for a distance approximately 25 feet across with bottom sloping somewhat sharply but not abruptly. The pond was near a public bathing beach, and nothing existed to denote where the beach ended and the city property on which the pond was located began. The water of the pond to the knowledge of defendant's agents was murky. The defendant left the pond without guards, notices, or protection.

[233 N.W. 612]

It maintained a life guard in season at the bathing beach. The public bathhouse was 700 feet distant from the pond. The water of the pond was warmer than that of the lake, which with the pond's location and general appearance made the pond attractive to children. Many children played on the beach nearby in summer, and many young children were to the knowledge of defendant's agent accustomed to play on small rafts in the pond made out of boards and pieces of poles and timber brought there by them. No agent of defendant was at the clear well or adjacent property except at infrequent intervals. When defendant's agents observed children at the pond, they drove them off, but with view to protection of the banking of the clear well rather than of the children. The pond is behind and 100 feet distant from a breakwater extending back from the beach 200 feet beyond the pond. The back end of the breakwater was covered with drifted sand. The breakwater was low enough for young children to climb over without difficulty.

The plaintiff is a divorced woman, remarried, whose former husband, the father of the deceased child, has left for parts unknown and abandoned his minor children, who have been supported by the plaintiff ever since their father left.

The trial judge was of opinion that the defendant's failure to fence off the pond or erect warning signs constituted negligence that caused the child's death and that the plaintiff was entitled to recover $2,500 damages. Judgment was entered accordingly.

Cornelius Colbert, City Atty., of Racine, for appellant.

Wilbershide & Baumblatt, of Racine, for respondent.

FOWLER, J.

While the defendant assigns as error the making of certain findings of fact by the court, its whole contention is included in the proposition that upon the undisputed facts it is entitled to dismissal of the complaint on the merits.

[1] As the city was operating the city waterworks and the injury occurred on its land used in connection with such operation, it was acting in proprietary, as distinguished from governmental, capacity, and it is responsible to the same extent that any other property owner would be who permitted a pond of his own creation to remain on his premises under like circumstances. The converse of this proposition is equally sound, that the city is under no greater responsibility than a private owner would be under the same circumstances.

[2] Whether the city is responsible depends on whether the rule of the turntable cases, so called, if to be applied in any case, should be applied to cases involving ponds or bodies of water on private property. This rule, strictly speaking, applies only to attractive nuisances located on private property, and is based on the proposition that while children on private property are technically trespassers, as distinguished from invitees or licensees, when attracted to private property by an attractive nuisance they are exempted from operation of the rule that a property owner owes no duty to trespassers thereon except to refrain from intentionally or willfully inflicting injury upon them, and in such case the landowner owes to children the same duty to exercise care for their safety that he owes to invitees or licensees, which is, generally speaking, to refrain from “active negligence.”

This court has many times had to consider hard cases of children injured while indulging their childish proclivities in play on premises on which structures, machines, or other things were located coming under the general designation of attractive nuisances. In all but one of these cases in which liability was held to exist the thing constituting the nuisance encroached or existed on the public street or a way used by the public, so that when the child entered upon the structure or came upon the thing constituting the attractive nuisance he was where he had a right to be. It was considered that because of this he was in the position of and entitled to the consideration required to be exercised towards an invitee or licensee. In Busse v. Rogers, 120 Wis. 443, 98 N. W. 219, 64 L. R. A. 183, a lumber pile encroached on the public street, and a child on the street climbed upon a part of the pile so encroaching, wandered off onto the part of the pile upon private property and while upon such part was injured because of the instability of the pile. In Secard v. Rhinelander L. Co., 147 Wis. 614, 133 N. W. 45, a child was injured by falling into and while playing about a post hole in the street dug and left unguarded by the defendant. In Ptak v. Kuetemeyer, 177 Wis. 262, 187 N. W. 1000, a child was killed by a cave-in while playing in a ditch excavated in the street by defendant and left without shoring. In Kelly v. Southern Wis. Ry., 152 Wis. 328, 140 N. W. 60, 44 L. R. A. (N. S.) 487, a child was injured while playing about an unguarded pulley by which wire was being strung in the street. In Webster v. Corcoran, 156 Wis. 576, 146 N. W....