Longwell v. Kansas City

• Decision Date: 20 May 1918
• Docket Number: No. 12873.,12873.
• Citation: 203 S.W. 657,199 Mo. App. 480
• Parties: LONGWELL v. KANSAS CITY.
• Court: Missouri Court of Appeals

203 S.W. 657

199 Mo. App. 480

LONGWELL v. KANSAS CITY.

No. 12873.

Kansas City Court of Appeals. Missouri.

May 20, 1918.

1. MUNICIPAL CORPORATIONS POWERS—PARKS—NEGLIGENCE.

A city's, use of a park for the purpose of providing Shetland ponies of reasonable gentleness, upon which children may ride properly attended, either for a consideration or gratis, is not foreign to the object for which public parks are maintained.

2. MUNICIPAL CORPORATIONS — PARKS—"SHOW"—"EXHIBITION."

Kansas City Charter 1909, art. 13, § 39, providing that shows and exhibitions shall not be given in parks, does not prohibit the city from furnishing Shetland ponies for children in

its parks; a "show" or "exhibition" being commonly understood to be something that one views, or at which one looks, and at the same time hears.

Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.

Action by Jack H. Longwell, by C. A. Longwell, his next friend, against Kansas City. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Martin O'Donnell, of Kansas City, for appellant. F. M. Hayward, of Kansas City, for respondent.

BLAND, J.

This is an appeal from the action of the court in sustaining a demurrer to the petition in an action for personal injuries. The following negligence was alleged: That on or about the 29th day of March, 1896, defendant became the owner of a pleasure ground and park, called "Swope Park," by virtue of a deed of conveyance delivered to it by one Thomas H. Swope, which was accepted by defendant; that one of the conditions of said deed was that the land "shall be used as a public pleasure ground or park forever"; that on the 29th day of August, 1916, defendant was maintaining said ground as a public park, and was maintaining restaurants, boating, pleasure grounds, zoological gardens, and Shetland ponies thereon; that defendant had established a rule or custom by virtue of which, and for a profit to it, all children visiting said park were invited to ride upon said ponies in said park for their enjoyment, recreation, or amusement, paying to it as a fee or charge therefor the sum of five cents; that on said day plaintiff was in said park for the purpose of obtaining the recreation and air provided by said defendant therein; that defendant's agent and servant, in accordance with said rule or custom, invited plaintiff to ride upon one of said ponies, and that plaintiff paid therefor the required fee of five cents; that thereupon said agent and servant seized the plaintiff and negligently placed him on the back of one of said ponies, whereupon said agent and servant negligently turned said pony loose, unattended, in the inclosure where it was kept, and it became unmanageable and ran, jumped, and cavorted, so that plaintiff was thrown upon his back to the ground, resulting in plaintiff's injury; that plaintiff at the time was too immature and inexperienced to ride upon or guide said pony unattended with reasonable safety to himself; that plaintiff's legs were too short, and the back of said pony too broad and round, to enable plaintiff to maintain his seat thereon; that said pony had a vicious and unmanageable disposition; and that all of said facts, which caused the injury, were known to defendant's agent, or could have been known, etc.

It is the contention of the defendant that the act of the city in maintaining said ponies and in allowing plaintiff to ride thereon, under the facts and circumstances alleged, was ultra vires. To this plaintiff makes two answers: First, that the act was not ultra vires; and, second, that the city, in taking hire for said ponies, is estopped from setting up the claim of ultra vires. The second contention of plaintiff we need not pass upon. There is no contention in this case, at this time, but that the city, if it was acting within the powers granted to it in its charter to maintain a public park, is liable to plaintiff for the injuries sustained by him. The question presented to us is whether or not the maintenance of said ponies for the purposes described in the petition was within the power of the city. It is said in State ex rel. Wood, Attorney...