Price v. The Atchison Water Company

• Decision Date: 09 October 1897
• Docket Number: 10211
• Citation: 50 P. 450,58 Kan. 551
• Parties: FRANK H. PRICE AND LILLIE E. PRICE v. THE ATCHISON WATER COMPANY
• Court: Kansas Supreme Court

50 P. 450

58 Kan. 551

FRANK H. PRICE AND LILLIE E. PRICE v. THE ATCHISON WATER COMPANY

No. 10211

Supreme Court of Kansas

October 9, 1897

Decided January, 1897.

Error from Atchison District Court. Hon. W. D. Webb, Judge.

Judgment reversed.

H. C Solomon and Waggener, Horton & Orr, for plaintiffs in error.

B. F Hudson, for defendant in error.

OPINION

DOSTER, C. J.

Melrose H. Price, the son of plaintiffs in error, a bright, intelligent boy of about eleven years of age, was drowned in one of the reservoirs of the defendant in error. These reservoirs were two in number, and were situated in or near the corporate limits of the city of Atchison, in immediate proximity to a section of the residence portion of the city. They were of unequal size; one having a capacity of about 1,100,000 gallons, the other, about 3,000,000 gallons. The smaller one was used as a "settling basin," into which the water was pumped, and from whence it was discharged into the larger one through a pipe. The opening of this pipe into the larger basin was covered with an "apron," made of lumber, and designed to break the force of the water discharge and prevent injury to the walls of the reservoir. It was partially buoyed by the water, and rose and fell as the water-supply increased or lessened. For four feet from the top the walls of the smaller reservoir were perpendicular, and thence slanted to the bottom; and its basin was about ten feet in depth in the deepest part. The walls of the larger reservoir slanted at an angle of about forty-five degrees, and its basin had a depth in its lowest part of about fifteen feet. It would be difficult, if not impossible, for a person falling into the larger basin to get out unaided, on account of the steepness of the walls. These reservoirs and appurtenant grounds occupied about three acres, and were attractive places for children, many of whom frequented there for fishing and for other sports. They were inclosed with a barb-wire fence ten to twelve wires high. There were two gates through the fence, which, however, were always kept closed, and two rudely constructed contrivances designed for stiles, but being, as described by some of the witnesses, "sheds," or large boxes, nailed to adjacent trees and inclosing most of the wires, but upon and over which it was not difficult for boys to climb from the outside. A watchman and custodian of these grounds was employed by the defendant. He was aware of the habit of the boys of the town to climb over the stiles, and permitted them to do so without objection. The boy, Melrose, without the consent or knowledge of his parents, went with some companions to the reservoirs in question to fish and play, and, venturing upon the apron before described, for the purpose of crossing from one part of the reservoir wall to another, the end which projected out upon the water sank, precipitating him into the basin, where he drowned. Immediately upon starting to go upon the apron, one of his companions called to him and warned him of the danger of so going, saying to him he might fall in. To this he replied "Oh, no!" His parents had frequently warned him of the danger of going to the reservoir, and he had trespassed there but once before, and then without their knowledge.

The plaintiffs in error sued to recover damages for the loss of their son, occasioned by the negligent maintenance of the reservoir and the negligence of the defendant in permitting him access to the dangerous situation described. The above statement summarizes the evidence for the plaintiff. To this evidence a demurrer for insufficiency to prove a cause of action was sustained. This action of the court is alleged as error, and is brought here for review.

The contention arising upon the above state of facts divides itself into two principal questions: First, Was the defendant in error negligent, as to the deceased boy, in maintaining the dangerous reservoir? and, second, Was the deceased guilty of contributory negligence in venturing upon the slanting wall and projecting apron? These are questions of fact, and they should have been left to the jury for determination. They are not questions of law for decision by the court.

It is, however, contended by the defendant in error that, inasmuch as the deceased was a trespasser upon its grounds, it owed to him no duty to guard against the accident which occurred. Without doubt, the common law exempts the owner of private grounds from obligation to keep them in a safe condition for the benefit of trespassers, idlers, bare licensees, or others who go upon them, not by invitation, express or implied, but for pleasure or through curiosity. Cooley on Torts (2d ed.), 718; 1 Thompson on Negligence, 303; Dobbins v. M. K. & T. Rly. Co., 41 S.W. 62. The common law, however, does not permit the owner of private grounds to keep thereon allurements to the natural instincts of human or animal kind, without taking reasonable precautions to insure the safety of such as may be thereby attracted to his premises. To maintain upon one's property enticements to the ignorant or unwary, is tantamount to an invitation to visit, and to inspect and enjoy; and in such cases the obligation to endeavor to protect from the dangers of the seductive instrument or place follows as justly as though the invitation had been express. The rule collected out of the authorities is vigorously, but not too strongly, stated in 1 Thompson on Negligence, 304, 305:

"There is also a class of cases which hold proprietors liable for injuries resulting to children although trespassing at the time, where, from the peculiar nature and open and exposed position of the dangerous defect or agent, the owner should reasonably anticipate such an injury to flow therefrom as actually happened. In such case, the question of negligence is for the jury. It would be a barbarous rule of law that would make the owner of land...