Jensen v. Kansas City

• Citation: 168 S.W. 827,181 Mo. App. 359
• Decision Date: 13 June 1914
• Docket Number: No. 11156.,11156.
• Parties: JENSEN v. KANSAS CITY.
• Court: Missouri Court of Appeals

168 S.W. 827

181 Mo. A. 359

JENSEN v. KANSAS CITY.

No. 11156.

Kansas City Court of Appeals. Missouri.

June 13, 1914.

Rehearing Denied July 6, 1914.

1. NEGLIGENCE (§ 136) — DANGEROUS PREMISES — CITY PARK — FOUNTAIN.

Where defendant city maintained a fountain near the intersection of certain streets which was attractive to children and many children were in the habit of playing there, the outer wall being 27 inches high, the top of the wall 18 inches wide and the water ranging from a depth of 5 inches at the edge of the basin to more than 3 feet in the center, and plaintiff's child, 5 years old, was drowned therein, whether the city was negligent in maintaining a fountain without adequately guarding the same was for the jury.

2. DEATH (§ 24) — RIGHT OF ACTION — DEFENSES — IMPUTED NEGLIGENCE.

While negligence of a parent cannot be imputed to an injured child in the latter's action for injuries, it will bar the parents' action growing out of the same injury.

3. DEATH (§ 103) — ACTIONS — QUESTION FOR JURY.

In an action for the death of a child five years old by drowning in a municipal fountain, evidence held to require submission to the jury of the question of the mother's negligence in permitting the child to escape from her custody just prior to the accident for a short time while she was engaged in labor.

Appeal from Circuit Court, Jackson County; Jos. A. Guthrie, Judge.

Action by Christ Jensen against Kansas City. Judgment for plaintiff, and defendant appeals. Affirmed.

A. F. Evans and F. M. Hayward, both of Kansas City, for appellant. Davis & Holmes, of Kansas City, for respondent.

ELLISON, P. J.

Plaintiffs are the parents of deceased, Samuel Jensen, a child five years old, who was drowned in a fountain just south of the intersection of Ninth street with the Paseo in Kansas City, and this action is brought by them on the ground of the alleged negligence of the city in permitting or conducting the fountain inadequately guarded. The judgment in the trial court was for the plaintiff.

The fountain basin was about circular and was near 40 feet in diameter. The outer wall was of heavy stone, and on the north and largely to the east and west was between 24 and 27 inches in height above the stone flagging surrounding it. On the inside the basin sloped downward toward the center, where the water was thrown upward in more or less spray effect when the fountain was in action. At the edge next to the inside of the outer wall, the water was about 5 inches deep, but at the center, on account of the slope, it came to a depth of more than 3 feet. The top stone of this surrounding wall was perhaps 18 inches in width, and, while it afforded a seat for adults, it also was used by children of different ages in walking or running around the fountain in play. The Paseo was a wide space with the fountain and ornamental work, as well as grass and flowers, in the center and a street or boulevard on either side. On the whole, the immediate vicinity and the fountain itself, in its surroundings, was attractive to children, and they played there in numbers; it being common to see little ones as young as three to four years and upwards about the fountain and running around the top of the wall. The deceased child was last seen on the wall running around the top. He was found drowned, his body being in the deep water near the fountain proper. No one saw him fall in, and it is not known just the time he did; but he had not been absent from home, near six blocks away, much more than an hour when his mother was told of his death.

In these circumstances the city contends there was no evidence of negligence and that it should have been so declared as a matter of law, while the plaintiff insists it was a question for the jury. After full consideration we have adopted the plaintiff's view. We are relieved of the labor or necessity of discussing the nature of the liability of a city in cases of injuries to children allowed to play in public parks about places where injuries, or death, may reasonably be expected to result to an impulsive and thoughtless child. The Supreme Court has...