Kowertz v. Dible

• Decision Date: 03 March 1930
• Docket Number: No. 16794.,16794.
• Citation: Kowertz v. Dible, 27 S.W.2d 61 (Mo. App. 1930)
• Court: Missouri Court of Appeals
• Parties: KOWERTZ et al. v. DIBLE et al.

27 S.W.2d 61

KOWERTZ et al. v. DIBLE et al.

No. 16794.

Kansas City Court of Appeals. Missouri.

March 3, 1930.

Rehearing Denied April 7, 1930.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

Action by Albert Kowertz and wife against N. W. Dible and others. Plaintiffs took an involuntary nonsuit, and, after their motion to set aside the nonsuit was overruled, plaintiffs appealed.

Affirmed.

Alex McIntosh, of Independence, and Erasmus C. Hall, of Kansas City, for appellants.

Perry W. Seaton and Samuel R. Freet, both of Kansas City, for respondents.

BOYER, C.

Appellants sued respondents to recover for the death of their infant son alleged to have been caused by the negligent creation and negligent maintenance of a pond of water on respondents' land in which the son met his death by being drowned April 17, 1927.

It was alleged "that said pond constituted a nuisance and created a condition attractive and dangerous to children that were wont to resort there, unhindered and unmolested, and the defendants knew, or by the exercise of ordinary care would have known all of said facts, circumstances and conditions and surroundings and the danger thereof could have been averted, rectified and remedied and thereby the death of said child averted." It was further charged that for many years children had been accustomed to play and swim in said pond, which fact was known to defendants, or by the use of ordinary care should have been known to them; that defendants negligently failed to provide and maintain an outlet to drain said pond, and negligently failed to post warning signs of the danger of said pond.

The answers were general denials.

There was no attack upon the petition except an oral objection to the introduction of evidence on the ground that the petition failed to state a cause of action. The evidence offered by plaintiff was received, at the close of which the court marked "given" peremptory instructions in behalf of all defendants. Plaintiffs took an involuntary nonsuit with leave to move to set the same aside. The motion was duly filed, overruled, and plaintiffs duly appealed. The errors assigned are the action of the court in sustaining the demurrers to the evidence, and in overruling plaintiffs' motion to set aside the involuntary nonsuit.

This calls for a statement of the evidence most favorable to plaintiffs' case. The main controversy is over the effect of the evidence rather than over the facts. We shall state the pertinent facts as we have gathered them from the entire record.

Plaintiffs were the father and mother of William Kowertz at the time of his decease. The boy was 10 years of age. On the day of his death he left home, and some time thereafter his body was recovered from the pond. It is not shown in evidence how he happened to go there, or how the tragedy occurred. The father of the boy testified that he knew of 2 other boys living near him who were with his son. These boys were not produced as witnesses, and no one testified as to how the boy got to the pond or met his death. A police officer was called to go to the pond. He did so and recovered the body of the boy near the center of the pond where the water was about 6 feet deep.

The tract of land upon which the pond was located consisted of approximately 80 acres, and is located within and near the southern boundary of Kansas City. More than 40 years ago a race track was built upon this ground, and a part of it extended across a dry ravine or draw. The fill or embankment for the track caught and held surface water and thereby formed the pond. The race track was last used in 1899. At that time the pond was used for the purpose of watering horses. Subsequent to that time some of the fill had been graded down, and from then to the time of the death of the boy a large tree had grown and was standing upon the embankment. The pond contained a body of water 85 feet wide and 600 feet long. Originally there was a pipe or drain to carry the surplus water from the pond through the embankment.

On the 17th day of April, 1927, the day in question, the tract of ground containing the pond was being used as a cow pasture and had been used for that purpose for many years. At times there had been as many as 50 cows pastured in the inclosure, and at other times a less number, and, for the last 2 or 3 years, 20 or less had been there. About 2 acres had been carved out of the 80-acre tract for residence purposes. One house stood upon the southeast corner of the tract, and 2 houses were located upon the west side and near the center of the tract where a street or roadway had been projected from the west into the tract for about 200 feet. The remainder of the 80-acre tract was mainly enclosed by a barbed wire fence. The father of the boy, however, testified that at the time of the death of his son there was no fence on the east side of the property near the pond.

The following streets border upon and bound said tract of ground: Seventy-First street on the north, Seventy-Fifth street on the south, Holmes street on the east, and Oak street on the west. A plat of the tract had been made and filed, but no street or roadway extended through or into the 80-acre tract, except the short projection upon the west side thereof heretofore mentioned. At the time in question, Seventy-Fifth street was within 2 blocks of the southern boundary of Kansas City. It was an old macadam road, and so was Seventy-First street. Holmes street upon the east side of the tract was an ungraded and unimproved county road which had not been changed by the city.

In reference to improvements and population upon surrounding and adjacent tracts, the evidence is not quite illuminating, but shows that upon the west side of Oak street, opposite the 80-acre tract, were a number of houses, perhaps 6, and south of Seventy-Fifth street and east of Oak street were about 5 houses. Southeast of this tract a new addition had been platted about 3 or 4 blocks away. West of the tract and proceeding toward Main street, 3 blocks away, the number of houses increased. There were a few scattering houses to the north. East of the tract and immediately opposite the location of the pond there was a 20-acre tract containing 2 houses and south of that was a 40-acre tract containing several houses. To the south there was also an open tract upon which the city maintained a water tower. With the exceptions named, the surrounding territory was vacant ground.

The home of the boy who was drowned was about 12 blocks away. The distance was not otherwise indicated. The father of the boy testified that during the last 9 years he had been around or by the property where the pond was situated very few times; that in the summertime he had seen children playing around the land that surrounded the pond and playing in the water, and in the wintertime skating on the ice, and had seen boys playing ball in the field close to the pond. Another witness testified that once or twice in the summer-time he had seen children playing at the pond, and that his own children had been swimming there. This was all of the evidence on the subject of the use of the premises for recreation purposes. There was no evidence of knowledge of the part of the property owner that such use was being made of it, or that any complaint had ever been made by any one.

The plaintiffs read in evidence the deposition of defendant, N. W. Dible, who was the president and chief owner of the Home Investment Company. From this evidence it appears that there had never been any knowledge on the part of the owner that children had been accustomed to use the premises, and there...