Moran v. Pullman Palace Car Company

• Decision Date: 16 June 1896
• Citation: Moran v. Pullman Palace Car Company, 134 Mo. 641, 36 S. W. 659 (Mo. 1896)
• Parties: Moran et al., Appellants, v. Pullman Palace Car Company et al
• Court: Missouri Supreme Court

36 S.W. 659

134 Mo. 641

Moran et al., Appellants, v. Pullman Palace Car Company et al

Supreme Court of Missouri, Second Division

June 16, 1896

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.

Affirmed.

John P Leahy and L. Frank Ottofy for appellants.

(1) The owner of property having thereon any dangerous agency, which is either attractive to children or where he has knowledge that they resort to it for amusement, or otherwise, and he fails to use ordinary care, under the circumstances, to guard the same against injury to them, he must respond in damages for such neglect, irrespective of the fact that the danger is not adjacent to the highway. Schmidt v. Dist. Co., 90 Mo. 284; Pekin v. McMahon, 154 Ill. 141; Leeright v. Ahrens, 60 Mo.App. 118; Fink v Furnace Co., 10 Mo.App. 61-67, and cases cited, 73; Dwyer v. Railroad, 12 Mo.App. 597; Malloy v. Savings and Loan Association, 21 P. 525; Mackey v. Vicksburg, 64 Miss. 777; Branson's Adm'r v. Labrot, 81 Ky. 638; Powers v. Harlow, 53 Mich. 507; Hydraulic Works Co. v. Orr, 83 Pa. St. 332; Whirley v. White-man, 1 Head (Tenn.), 610; Coppner v. Pennsylvania Co., 12 Ill.App. 600; Penso v. McCormick, 125 Ind. 116; Railroad v. McDonald, 152 U.S. 262; Schmidt v. Cook, 23 N.Y.S. 799; Brinkley Car Works v. Cooper, 31 S.W. 154; Ilwaco, etc., v. Hedrick, 1 Wash. St. 446; Barthold v. Philadelphia, 154 Pa. St. 109; Railroad v. Measles, 81 Tex. 474. (2) It is not necessary to prove knowledge in defendant that children resorted to the place; it is bound to take notice of the habits of children. Franke v. City, 110 Mo. 516; Dwyer v. Railroad, 12 Mo.App. 597; Fink v. Mo. Fur. Co., 10 Mo.App. 61. (3) And the question whether the owner was exercising ordinary care under the circumstances is for the jury. Koons v. Railroad, 65 Mo. 592; Nagel v. Railroad, 75 Mo. 653; Brinkley v. Cooper, 31 S.W. 154; Barthold v. Philadelphia, 155 Pa. St. 109. (4) It is an element of negligence whether or not the place could be inclosed or fenced. Overholt v. Vieths, 93 Mo. 422; Rushenberg v. Railroad, 109 Mo. 112. (5) It was competent to show that other children had fallen into the pond; the court should have admitted this testimony. Golden v. Clinton, 54 Mo.App. 100; 36 Central Law Journal, p. 335 and cases cited; Railroad v. Measles, 81 Tex. 474. (6) The court erred in excluding sections 619 and 620 of the ordinances of the city of St. Louis; they require owners to fence property that is adjacent to streets and below the natural or artificial grades thereof and the failure to comply with such ordinances is negligence. Pekin v. McMahon, 154 Ill. 141; Keim v. R. & T. Co., 90 Mo. 314; Gass v. Railroad, 57 Mo.App. 574; Eads v. Gains, 58 Mo.App. 586.

Dickson & Smith for respondent, Pullman Palace Car Company.

(1) An owner of land is under no obligation to one trespassing thereon, even though an infant, to place guards around an excavation or pond wholly within such land and not immediately adjacent to a public highway. Overholt v. Vieths, 93 Mo. 422; Witte v. Stifel, 126 Mo. 295; Barney v. Railroad, 126 Mo. 372; Richards v. Connell, 63 N.W. 915; Ratte v. Dawson, 52 N.W. 965; Klix v. Nieman, 68 Wis. 272; Hargreaves v. Deacon, 25 Mich. 1; Charlebois v. Railroad, 91 Mich. 59; Murphy v. Brooklyn, 118 N.Y. 575; Sterger v. Van Sicklen, 132 N.Y. 499; Beck v. Carter, 68 N.Y. 283; Robertson v. Mayor, 28 N.Y.S. 13; Green v. Linton, 27 N.Y.S. 892; Clark v. Manchester, 62 N.H. 577; Frost v. Railroad, 9 A. (N. H.) 790; Gillespie v. McGowan, 100 Pa. St. 144; O'Connor v. Railroad, 44 La. Ann. 39; Benson v. Baltimore Tr. Co., 26 A. 985; Mergenthaler v. Kirby, 28 A. 1065; Maenner v. Carroll, 46 Md. 213; McGinniss v. Butler, 34 N.E. 259; Stevens v. Nichols, 29 N.E. 1150; Galligan v. Mfg. Co., 10 N.E. 171; Daniels v. Railroad, 154 Mass. 349; McEachern v. Railroad, 150 Mass. 515; Clark v. Richmond, 83 Va. 355; Addison on Torts, secs. 621, 622; Bigelow on Torts, 699; Cooley on Torts, 606. (2) The ordinances offered in evidence relate only to the duty of a landowner to guard excavations, etc., upon his land so near a public highway as to be dangerous under ordinary circumstances to persons properly using such highway, and were rightly rejected. Eisenberg v. Railroad, 33 Mo.App. 85; Overholt v. Vieths, 93 Mo. 422; Clark v. Richmond, 83 Va. 355.

W. C. Marshall for respondent, city of St. Louis.

(1) The circuit court properly excluded sections 619, 620, and 621, chapter 15, article 4, Revised Ordinances St. Louis, 1887. These ordinance provisions are merely police regulations which the city has power to adopt, but the city can not be made liable for damages resulting from a failure to enforce them. 15 Am. and Eng. Encyclopedia of Law, p. 1154, and cases cited in note 3. (2) The circuit court properly gave the instructions for a nonsuit as to the city of St. Louis. A municipality is not bound to provide guards or railings where the excavation to be guarded against is not immediately adjacent to the highway, but such a distance from it that the municipality can not reasonably be expected to guard against it. Nebraska City v. Campbell, 2 Black (U.S.) 560; Adams v. Natick, 13 Allen (Mass.), 529; Warren v. Holyoke, 112 Mass. 362; Sparhawk v. Salem, 1 Allen (Mass.), 30; Murphy v. Gloucester, 105 Mass. 470; Puffer v. Orange, 122 Mass. 389; Lansing v. Toolan, 37 Mich. 152; Chicago v. Gallagher, 44 Ill. 295; Young v. District of Columbia, 3 McArthur (D. C.), 137; Monmouth v. Sullivan, 8 Ill.App. 50; Daily v. Worcester, 131 Mass. 452; Goodin v. Des Moines, 55 Iowa 67; Duffy v. Dubuque, 63 Iowa 171. The city is not bound to erect barriers to prevent travelers from straying from a highway, although there is a dangerous place twenty-eight feet from the highway which they may reach by so straying. Daily v. Worcester, 131 Mass. 452. A traveler driving with a horse and wagon was precipitated over an embankment which was thirty-four feet from the traveled part of the highway and which was not separated therefrom by a railing: Held, that he could not recover damages from the town. Barnes v. Inhabitants, 138 Mass. 67. "A dangerous place twenty-five feet from the highway, clearly would not be in such dangerous proximity as to make traveling on it unsafe." Murphy v. Gloucester, 105 Mass. 470. Consult Hubbell v. Yonkers, 104 N.Y. 434; The case of Overholt v. Vieths, 93 Mo. 422, is conclusive of the case at bar.

OPINION

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.

[SEE ILLUSTRATION IN ORIGINAL]

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, travelers on horse back 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 six feet high, so perpendicular as to require two foot boards at the base to keep the earth from falling on the sidewalk.

The pond shown by the diagram begins some twenty 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 twenty-five feet east of the east line of Cardinal avenue.

The pond is quite shallow, not exceeding, it seems, some three feet deep in most places, and sloping gradually toward the Cardinal avenue side. On that side it begins quite shallow at first, grows deeper until it is about three feet deep some ten or fifteen feet from the shore, when there is a sudden depression making the water some fifteen 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 nine years of age, went in swimming or bathing in the pond and was drowned, his nude body being shortly afterward found in the depression already mentioned, about forty 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...