Fiel v. City of Racine

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

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.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. 815, a child was injured by attempting, at request of defendant's servant, to straighten out a kink in a rope attached to tackle being used in an alley to unload a wagon. Similar to these cases is that of Meyer v. Menominee & M. L. Co., 151 Wis. 279, 138 N. W. 1008, where a child went upon a lumber pile adjacent to a much traveled private road through a lumber yard and was killed by coming in contact with a slack electric light wire strung low across the pile, the insulation on which was rotted off. Also similar is Brinilson v. C. & N. W. Ry. Co., 144 Wis. 614, 129 N. W. 664, 32 L. R. A. (N. S.) 359, where a child was killed by falling into a hot-water pit maintained by defendant in a breakwater covered with plank maintained by defendant which was used by the public as a promenade or way from which a plank was removed and left out at the place where the child fell in. Herrem v. Konz, 165 Wis. 574, 162 N. W. 654, involved injury to a child from an unprotected revolving shaft in an open space under defendant's mill. In all these cases, as in all cases of liability growing out of maintaining an attractive nuisance, the defendant knew children were in the habit of playing about the thing constituting the attraction.

On the other hand are the cases involving children injured by structures or other things of attractive nature located on private property holding that liability did not exist. In Klix v. Nieman, 68 Wis. 271, 32 N. W. 223, 224, 60 Am. Rep. 854, a child was drowned in a small pond on a city lot at a street corner which had formed by the filling of the street in grading which made an embankment across a gully that impounded surface water. The court distinguishes the case from those where the thing causing the injury was so close to the highway as to make it unsafe for users of it. The charge of negligence laid was failure of the owner to fence or guard the excavation on his lot to safeguard those who might go on or about the impounded water. The court says:

“It surely is not the duty of an owner to guard * * * every dangerous hole or pond or stream of water on his premises, for the protection of persons going upon his land who had no right to go there.”

The opinion quotes from Thompson on Negligence, 361:

“An owner of land is under no obligation to fence an excavation on his land, unless it is so near the highway as to amount to a public nuisance; and if persons or animals are killed or injured in consequence of his failing to do so, no damages can be recovered. A qualification of this rule is that, when the owner of land, expressly or by implication, invites a person to come upon it, he will be liable for damages if he permit anything in the nature of...