Harper v. The City of Topeka

• Decision Date: 11 April 1914
• Docket Number: 18,453
• Parties: JOHN W. HARPER et al., Appellees, v. THE CITY OF TOPEKA, Appellant
• Court: Kansas Supreme Court

139 P. 1018

92 Kan. 11

JOHN W. HARPER et al., Appellees, v. THE CITY OF TOPEKA, Appellant

No. 18,453

Supreme Court of Kansas

April 11, 1914

Decided January, 1914.

Appeal from Shawnee district court, division No. 1; ALSTON W. DANA judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CITY PARK--Maintenance Thereof a Governmental Function. The maintenance of a park by a city for the sole benefit of the public, and not for any profit or benefit to the municipal corporation, is a governmental or public function.

2. PETITION--Allegations Therein Admitted by Demurrer. The allegations of the petition generally, and especially as to the physical conditions of the pond in the park, are, by the demurrer, admitted.

3. POND--In Public Park--Not an "Attractive Nuisance." The pond as described, being a reproduction of a natural pond, is not an attractive nuisance.

W. C. Ralston, city attorney, and James W. Clark, assistant city attorney, for the appellant.

Otis E. Hungate, and William R. Arthur, both of Topeka, for the appellees.

Smith J. West, J. concurring specially.

OPINION

SMITH, J.

The appellees, in their petition, alleged that they are the father and mother of Matteson Harper, deceased; that on December 5, 1911, and prior thereto, the defendant city owned and maintained a public park, known as Central Park, within the limits of the city, and kept and maintained therein a pond of water which had been constructed by the city; that near the south end of the park the pond was seven or eight feet deep and on the date named was frozen over and covered with ice about one inch thick; that the park was in a residence portion of the city where many children lived and passed by; that the city kept and maintained open gates to the park and paths and walks therein upon which the public was permitted to walk, one of which paths was along the south end of the pond; that for a long time prior to the accident numerous children of the locality frequently resorted to the park to play and for amusement, and especially when the park was covered with ice to slide and skate thereon; that the city neglected to make any effort to keep the children from playing about the pond or from skating and sliding thereon, and provided no watchman to patrol the pond or to rescue children therefrom if any got into the pond; that on the above date Matteson Harper, then about seven years old, was going from the Central Park school, located west of Central Park, to his home on Western avenue in the city, and in so doing passed through the park and along the south bank of the pond, which was the direct route from the school to his home; that observing that the pond was frozen over and lacking in judgment and discretion by reason of his youth, he was attracted thereby and went upon the ice to slide; that he broke through the ice, fell into the water and was drowned at a point where the water was eight feet deep; that the deceased did not know the dangerous condition of the ice but the condition was well known to the city, its officers, agents and employees; that when the deceased was drowned he was a healthy, strong boy and affectionate to his parents; that had he lived his services would have been of the value of $ 10,000 to the appellees, for which sum they prayed judgment.

To this petition the city filed a demurrer on the ground that the petition did not state facts sufficient to constitute a cause of action. Upon the hearing of the demurrer, it was overruled by the court and the city appeals.

Ordinarily, cities and other municipal corporations in the exercise of their governmental functions are not liable in damages for any neglect, or even wrongdoing, of their officers in the discharge of such duties unless such liability is expressly imposed upon them by law. ( Pfefferle v. Comm'rs of Lyon Co., 39 Kan. 432, 18 P. 506; Peters v. City of Lindsborg, 40 Kan. 654, 20 P. 490; La Clef v. City of Concordia, 41 Kan. 323, 21 P. 272; City of New Kiowa v. Craven, 46 Kan. 114, 26 P. 426; City of Caldwell v. Prunelle, 57 Kan. 511, 46 P. 949; 4 Dillon, Municipal Corporations, 5th ed., § 1660, p. 2895; 28 Cyc. 1305.) An exception to the rule has been made which holds cities liable for damages resulting from defects in their highways or certain conditions of notice. In Jansen v. City of Atchison, 16 Kan. 358, it was said:

"Cities, having the powers ordinarily conferred upon them respecting bridges, streets and sidewalks within their limits, owe to the public the duty of keeping them in a safe condition for use in the usual mode by travelers, and are liable in a civil action for special injuries resulting from neglect to perform this duty." (Syl. P 1.)

In the second edition of the reports containing the latter case, numerous authorities are cited approving the doctrine. Neither counties nor townships, however, were held liable in this state for injuries caused by defects in bridges, culverts or highways until the enactment of chapter 237 of the Laws of 1887 (Gen. Stat. 1909, § 658). ( Eikenberry v. Township of Bazaar, 22 Kan. 556; Comm'rs of Marion Co. v. Riggs, 24 Kan. 255; Parr v. Shawnee County, 70 Kan. 111, 78 P. 449.)

Another exception to the general rule stated as to the liability of cities in the state was adjudicated in Kansas City v. Siese, 71 Kan. 283, 80 P. 626. In that case the city was held liable in damages for maintaining an attractive nuisance in or adjacent to a street in a thickly settled district of the city, and the doctrine was reaffirmed in Roman v. City of Leavenworth, 90 Kan. 379, 133 P. 551. There are, however, limitations upon the application of the doctrine. In Tavis v. Kansas City, 89 Kan. 547, 132 P. 185, the following quotation from Peters v. Bowman, 115 Cal. 345, 47 P. 113, 598, was made with approval:

"'The owner of a thing dangerous and attractive to children is not always and universally liable for an injury to a child tempted by the attraction. His liability bears a relation to the character of the thing, whether natural and common, or artificial and uncommon, to the comparative ease or difficulty of preventing the danger without destroying or impairing the usefulness of the thing, and, in short, to the reasonableness and propriety of his own conduct, in view of all surrounding circumstances and conditions. As to common dangers existing in the order of nature, it is the duty of parents to guard and warn their children, and, failing to...