Gilliland v. The City of Topeka and James Torsney

• Decision Date: 07 January 1928
• Docket Number: 27,585
• Citation: 262 P. 493,124 Kan. 726
• Parties: E. E. GILLILAND et al., Appellants, v. THE CITY OF TOPEKA and JAMES TORSNEY, Appellees
• Court: Kansas Supreme Court

262 P. 493

124 Kan. 726

E. E. GILLILAND et al., Appellants, v. THE CITY OF TOPEKA and JAMES TORSNEY, Appellees

No. 27,585

Supreme Court of Kansas

January 7, 1928

Decided January, 1928

Appeal from Shawnee district court, division No. 2; GEORGE H WHITCOMB, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

NEGLIGENCE--Attractive Nuisances--Swimming Pool in Public Park. A swimming pool in a public park of a city, constructed of concrete and equipped with the usual swimming-pool accessories, is not a nuisance, although attractive to children.

Edward Rooney, of Topeka, for the appellants.

J. E. Addington and Irl H. Byler, both of Topeka, for the appellees.

OPINION

BURCH, J.:

The action was one for damages for death of a six-year-old child who was drowned in the swimming pool in Ripley park, a public park in the city of Topeka. A demurrer was sustained to the petition, and plaintiffs appeal.

The swimming pool was an artificial pool constructed of cement. It had a sloping bottom which provided varying depths of water, and was equipped with a diving platform, springboards, a bathhouse, and other swimming-pool accessories. While attending a Sunday-school picnic in the park the child went into the pool, got beyond his depth and was drowned. No life guard was on duty at the time. Plaintiffs stand on the proposition that the swimming pool with its equipment and appurtenances was a nuisance attractive to children, and consequently that the city may not avoid liability by invoking the doctrine of exercise of governmental power in maintaining the swimming pool.

The swimming pool was doubtless attractive to children, but it was not a nuisance, producing public annoyance, inconvenience, discomfort or hurt. It was a feature of the park tending to promote public health, happiness and welfare. The accident to plaintiffs' child was a misfortune greatly to be deplored, but it did not change the essential nature of the place.

In the case of Peters v. Bowman, 115 Cal 345, a city erected an embankment which caused a pond to form on a vacant lot, in which a boy was drowned. It was held the lot owner was not liable for maintaining an attractive nuisance. The facts in the Peters case were essentially similar to the facts in the case of Tavis v. Kansas City, 89 Kan. 547, 132 P. 185. In the opinion in the Tavis case (p. 553) a quotation was made from the opinion in the Peters case. In the case of Harper v. City of Topeka, 92 Kan. 11, 139 P. 1018, a boy seven years old broke through the ice on an artificial pond in a public park of the city and was drowned. It was held the city was not liable for maintaining an attractive nuisance. In the opinion, the quotation from the opinion in the Peters case appearing in the opinion in the Tavis case, was reprinted. (p. 14.) Plaintiffs seize upon the two sentences concluding the quotation from the opinion in the Peters case, making a distinction...