Moran v. Pullman Palace-Car Co.

• Citation: 134 Mo. 641,36 S.W. 659
• Parties: MORAN et ux. v. PULLMAN PALACE-CAR CO. et al.
• Decision Date: 16 June 1896
• Court: United States State Supreme Court of Missouri

36 S.W. 659

134 Mo. 641

MORAN et ux. v. PULLMAN PALACE-CAR CO. et al.

Supreme Court of Missouri, Division No. 2.

June 16, 1896.

MUNICIPAL CORPORATIONS — ORDINANCES — CREATING CIVIL LIABILITY — DANGEROUS PREMISES.

1. City ordinances requiring property owners to fill excavations which are below the grade of the surrounding or adjacent streets do not apply to excavations 25 feet from the street, but only to those in such close proximity to streets as to endanger the safety of travelers, as travelers, on such thoroughfare.

2. A municipal corporation cannot create by ordinance a civil liability against a person violating an ordinance requiring property owners to fill excavations adjacent to the streets, in favor of persons injured by its violation.

3. A municipal corporation is not liable, for failure to enforce ordinances requiring property owners to fill excavations adjacent to the streets, to persons injured by such violation.

4. A city property owner, on whose lot surface water had collected so as to form a pond in an excavation, is not liable, by reason of his failure to protect the pond by fences, for the death of a child while bathing in the pond without permission or invitation from the lot owner.

Appeal from St. Louis circuit court; Daniel Dillon, Judge.

Action by Anthony Moran and wife against the Pullman Palace-Car Company and another. There was a judgment for defendants, and plaintiffs appeal. Affirmed.

The following is the plat referred to in the opinion:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

John P. Leahy and L. Frank Ottofy, for appellants. Dickson & Smith and W. C. Marshall, for respondents.

SHERWOOD, J.

The subjoined plat shows the locality and surroundings of the accident which constitutes the basis of the present action for damages caused by the drowning of plaintiffs' son in a pond. Bernard street, on the north, Montrose avenue, on the east, Scott avenue, on the south, and Cardinal avenue, on the west, are the boundary lines of a square of ground owned by the Pullman Car Company. Within that square of ground is located a pond caused by excavations in quarrying rock there. There are no houses in the immediate neighborhood, except as indicated on the plat, in the northwest corner of Bernard street and Montrose avenue, and on that avenue. With the exception of Montrose avenue, none of the streets in the vicinity have any existence, save on paper, there being nothing to indicate where they are; and westward from Montrose avenue, for more than half a mile, the country is an open prairie, crossed at will by foot passengers, and travelers on horseback or in vehicles. Along the entire front of the property thus bounded (that is to say, on the west line of the sidewalk on the west side of Montrose avenue) extended a perpendicular bank of earth, something like 6 feet high, so perpendicular as to require two footboards at the base to keep the earth from falling on the sidewalk. The pond shown by the diagram begins some 20 feet west of the west line of Montrose avenue, still further away from the south edge of the block of ground in question, — that is, on Scott avenue, — a less distance from the north side of the block on Bernard street, and some 25 feet east of the east line of Cardinal avenue. The pond is quite shallow, — not exceeding, it seems, some 3 feet deep in most places, and sloping gradually towards the Cardinal avenue side. On that side it begins quite shallow at first, grows deeper until it is about 3 feet deep some 10 or 15 feet from the shore, when there is a sudden depression, making the water some 15 feet deep. This sudden depression, however, where the water is of that depth, is, it seems, quite circumscribed in area, as indicated by the plat. For a number of years, boys in the vicinity and neighborhood of the pond had been accustomed at all hours during the day to bathing in it. Policemen would occasionally drive them away. Of evenings, men, also, would come to the pond for the purpose of bathing. In the afternoon of June 15, 1892, between 2 and 3 o'clock, plaintiffs' son, a boy some 9 years of age, went in swimming or bathing in the pond, and was drowned; his nude body being shortly afterwards found in the depression already mentioned, about 40 feet from the east line of Cardinal avenue. The boy's parents lived about a mile from the pond, and allowed him full liberty to play with other boys on the streets. The gravamen of plaintiffs' action, in substance, is: That the pond was attractive to children, who were accustomed to bathe therein. That it was a dangerous place, by reason of the deep hole therein. That defendants knew, or might have known, of the danger of the place to children, and that they were in the habit of bathing in the pond. That defendants negligently permitted the pond to be frequented by children; to remain unguarded and unfenced; neglected to fill said excavation, and to fence the same as required by divers ordinances which were pleaded, and such failure resulted in the death of plaintiffs' son, who entering the pond where it seemed to be shallow, fell over into the deep portion, and was drowned. The answer of the city was a general denial, coupled with a plea of contributory negligence. The answer of the defendant company was, in effect, a general denial, coupled with pleas averring that plaintiffs' son was, at the time of his injury and death, trespassing on defendants' property and, while so trespassing without leave or license, was guilty of such contributory negligence, in wading or swimming about in the pond, as directly led to his death. To these answers, plaintiffs replied.

The ordinances pleaded are as follows: Section 619, c. 15, art. 4: "All holes, depressions, excavations or other dangerous places within the city of St. Louis that are below the natural or artificial grades of the surrounding or adjacent streets, shall be filled up so as to prevent persons and animals from falling into them." Section 620, c. 15, art. 4: "The street commissioner shall notify the owners or occupants of premises on which such dangerous places exist, to cause fences or walls to be built around them, or to cause the same to be filled up, within such period as he shall deem the exigencies of the case may require. In case of failure to comply by any of the owners or occupants of said premises, after the notification above required has been given, then they shall be deemed guilty of a...