Husband v. Salt Lake City

• Citation: 92 Utah 449,69 P.2d 491
• Decision Date: 16 June 1937
• Docket Number: 5800
• Court: Supreme Court of Utah
• Parties: HUSBAND v. SALT LAKE CITY

69 P.2d 491

92 Utah 449

HUSBAND v. SALT LAKE CITY

No. 5800

Supreme Court of Utah

June 16, 1937

Rehearing Denied September 10, 1937.

Appeal from District Court, Third District, Salt Lake County; James W. McKinney, Judge.

Action by Dale Husband, a minor, by R. S. Husband, his guardian ad litem, against Salt Lake City. From a judgment dismissing the complaint, plaintiff appeals.

AFFIRMED.

Shirley P. Jones, of Salt Lake City, for appellant.

Fisher Harris, City Atty., and E. R. Christensen and Gerald Irvine Asst. City Attys., and Hurd & Hurd, all of Salt Lake City for respondent.

HANSON Justice. FOLLAND, Chief Justice, WOLFE, Justice, concurring in the order. MOFFAT, Justice, concurring.

OPINION

HANSON, Justice.

Plaintiff brought this action against Salt Lake City to recover for personal injuries sustained by him while he was in Pioneer Park, a park owned and managed by the city. The defendant filed a general demurrer to plaintiff's complaint. The lower court sustained the demurrer and, upon plaintiff failing to further plead, dismissed the complaint. Plaintiff appeals from the judgment of dismissal and assigns as error the sustaining of said demurrer and the dismissal of plaintiff's complaint. Pertinent to the questions before us, the complaint alleges:

"IV. That defendant owns, operates, manages and controls a certain park in said city situated between Third and Fourth South and Second and Third West Streets, known as Pioneer Park and owns, operates, manages and controls in said park a public swimming pool, and that both said swimming pool and said park are for the use of the inhabitants of said city.

"V. That children of tender years and of all ages living in the neighborhood of said Pioneer Park and elsewhere in said city have for many years in large numbers frequented and used said park as a playground, and did so frequent and use said park in the month of July, 1933, and also for many years have swam in the swimming pool in said park and did so use said swimming pool in July, 1933, all at the invitation of the defendant to so frequent and use said park and swimming pool, and that defendant at all times herein mentioned provided and maintained said park and swimming pool for the use and benefit of such children, and that in so using the said swimming pool the children were accustomed to play around the edges of the swimming pool in their bathing suits, and also at other places, and on the pedestrian pathways ways in said park.

"VI. That there are now and at all times herein mentioned were pedestrian pathways in said park leading to and around and adjacent to said swimming pool, and that said pedestrian pathways were not and are not for the use or convenience of vehicles, and particularly of trucks and other motor vehicles, and that the children frequenting and using said park and swimming pool, particularly in the mornings, did and would play in great numbers, run, chase each other and dash heedlessly to and fro along, over and across said pedestrian pathways and around said swimming pool and in said park, so that said pathways would be and were crowded, and particularly on the 8th day of July, 1933, were crowded with children thus scampering, running and playing and jostling each other to and fro as aforesaid.

"VII. That the defendant knew of the custom and habit of said children in playing, frequenting, and using said park, pathways and swimming pool as aforesaid, and regardless of this knowledge the defendant on many occasions, and particularly on or about the 8th day of July, 1933, operated a huge sprinkling wagon or truck without guards or attendants to keep said children away from it, over and along said pedestrian pathways in said park and in the vicinity of said swimming pool, and that said truck had water sprays located in the rear thereof so that water could be and was sprayed from said truck to settle dust and for other purposes desired by the defendant, and that defendant knew that said truck, and particularly the sprays of water sprinkled therefrom, would and did attract the children in said park and around said swimming pool, and that said children did and would run in and around said spray and in and around and in front of and along the side of said truck; that in operating said truck over and along said pedestrian pathways and in said park, and in spraying and sprinkling with said truck there was great and grave and imminent danger to the lives and safety of said children, and operating said truck in and among said children while the children were at play and pushing and jostling each other and running to and fro was a great menace to the lives and safety of said children; that said children played heedlessly and without appreciation of the danger to themselves in running in and around and in front of and along the side of said truck, and in pushing and jostling each other as said truck proceeded along said pathway, all of which was known or should have been known to defendant; that said pathways were not provided for the use of said truck, and that said truck on or about the 8th day of July, 1933, and on similar prior occasions when defendant had operated said truck or another similar truck in the same way and at the same place, was a constant source of danger to the lives and safety of the children in said park as aforesaid, and that the operating of said truck in the manner aforesaid and at said times and places, and by reason of the presence of said children, and by reason of the water spraying from said truck and attracting said children as aforesaid, at all times, and particularly on the 8th day of July, 1933, then and there constituted a dangerous menace to the safety and welfare of said children, and was a nuisance, and that such nuisance was created by the defendant.

"VIII. That notwithstanding the danger and menace to the lives and safety of said children as aforesaid, and or about the 8th day of July, 1933, the defendant operated and caused to be propelled said sprinkling truck in said park and along the pedestrian pathways in the vicinity of said swimming pool, with the sprays of water sprinkling therefrom in and among said children who were then and there playing as aforesaid in great numbers, and that at said time and place the plaintiff, who was then and there a minor aged ten, unable to exercise the care and discretion of an adult, was proceeding towards the swimming pool in said park, and that as the said truck was operated as aforesaid the children were running and pushing and jostling and crowding each other around said truck and in front of and along the side thereof, and in and through said water spray, making loud outcries and noises, and that the driver of said truck nevertheless proceeded heedlessly to drive in and among said children, and that said children in running and pushing and jostling each other as aforesaid forced the plaintiff into the wheel of said truck so that his right leg was caught between the left wheel and the spring of said truck; that the driver of said truck was not watching the children or this plaintiff, or watching the progress of said truck as it proceeded in and among said children, and that when plaintiff's leg was caught as aforesaid the children yelled and cried out to the driver of said truck to stop, and that he proceeded without heeding said warning and paid no attention to said outcries.

"IX. That by reason of the creation and maintenance of said nuisance by the defendant as aforesaid, and that by reason of the defendant's negligence and carelessness as aforesaid plaintiff's right leg was severely injured, and that the calf thereof was practically torn away from the leg, and he was forced to have hospital care and treatment for many weeks; that he suffered great pain and has a permanent and unsightly scar on his right leg which will be there the remainder of his life; that in healing said wound formed severe scar tissue and plaintiff's leg is permanently disfigured, all to his injury and damage in the sum of Fifteen Hundred ($ 1500.00) Dollars.

"X. That in the month of March, 1934, plaintiff through his father, R. S. Husband, submitted a claim to the Board of Commissioners of defendant, a copy of which is attached hereto marked Exhibit 'A', and by this reference made a part hereof; that on July 25, 1934, the Board of Commissioners of defendant denied said claim."

The claim presented to the city was verified and reads as follows:

"R S. Husband, being first duly sworn deposes and says:

"That he is the father of Dale Husband, a minor, age ten years, and that he makes this claim for and in his own behalf and in behalf of said minor; that on July 8, 1933 at approximately eleven o'clock A. M. at Pioneer Park in Salt Lake City one of the sprinkling trucks No. 37 of Salt Lake City, a municipal corporation, operated by a Mr. Oakes, was proceeding through Pioneer Park; that the said truck was sprinkling the ground and that children playing in said park were permitted by the driver of said truck to run around and through the water sprays from the truck, and that neither the driver of said truck nor any other representative or employee of Salt Lake City prevented said children from running around the truck and the sprays therefrom while the said truck was in motion; that the said Dale Husband was pushed into the said truck by other children playing in the park, and that the driver paid no heed to the said Dale Husband or to the cries of the other children warning the driver of the truck of the danger to the said Dale Husband, and that the driver of said truck proceeded in his course with the truck after the said Dale Husband had been pushed into it, and as a result thereof the said Dale Husband was severely injured in his...