Ramirez v. City of Cheyenne

• Decision Date: 15 December 1925
• Docket Number: 1124
• Citation: 241 P. 710,34 Wyo. 67
• Parties: RAMIREZ v. CITY OF CHEYENNE [*]
• Court: Wyoming Supreme Court

241 P. 710

34 Wyo. 67

RAMIREZ v. CITY OF CHEYENNE ^[*]

No. 1124

Supreme Court of Wyoming

December 15, 1925

ERROR to District Court, Laramie County; WILLIAM A. RINER, Judge.

Action by Joseph M. Ramirez, as administrator of the estate of Clarence Ramirez, deceased, against the city of Cheyenne for the death of plaintiff's intestate, killed by the falling of a swing maintained in a public park. There was judgment for defendant on a directed verdict, and plaintiff brings error.

Judgment reversed and case remanded.

Walton & Watts for plaintiff in error.

Defendant maintained the playground in its private capacity, which the law distinguishes from governmental functions, such as maintaining order, punishing crime, collecting taxes and etc., every municipal corporation has a two-fold character the one governmental, the other private; 19 R. C. L. pp 697-698, 1129-1130; defendant is not authorized under its charter to operate parks or playgrounds; 1624 C. S.; Capp vs. City of St. Louis, 251 Mo. 345; it was required to exercise reasonable care in maintaining the playground and is liable in civil damages for injuries due to its neglect; City vs. Swain (Okla.) 142 P. 1104; Canon City vs. Cox (Colo.) 133 P. 1040; Denver vs. Spencer (Colo.) 82 P. 590; Denver vs. Dunsmore (Colo.) 3 P. 705; City of Indianapolis vs. Baker, 125 N.E. 52; Gushee vs. City of N. Y. 58 N.Y.S. 967-970; People vs. Board (Mich.) 15 Am. Rep. 202-208; State vs. Edwards, (Mont.) 111 P. 734; Oliver vs. Worcester, (Mass.) 3 Am. Rep. 485; the law of attractive nuisances is fully discussed in R. R. Co. vs. Stout, 17 Wall (U.S.) 657; U. P. Ry. Co. vs. McDonald 152 U.S. 262; Lowe vs. Salt Lake City (Utah) 57 A. S. R. 708; Lyttle vs. Harlan Coal Co. 167 Ky. 345; Doyle vs. Chattanooga, 128 Tenn. 433; the evidence established the city's ownership of the park and swing in question and that its condition was defective and unsafe, and had been so for some time prior to the accident. The child suffered a fracture of the skull by the falling of the swing; defendant had knowledge of the defective condition of the swing. Children under the age of 7 years cannot be guilty of contributory negligence; 29 Cyc. 540; Tucker vs. Cotton Mills, 76 S.C. 539; Lorence vs. Ellensburg, 13 Wash. 341; Westbrook vs. Mobile R. R. Co. (Miss.) 14 A. S. R. 587; and cases cited; Price vs. Water Co. (Kans.) 52 Am. St. R. 625; the court erred in directing a verdict for defendant.

T. Paul Wilcox, Sam M. Thompson and R. N. Matson for defendant in error.

A municipal corporation maintaining a public park is not liable for negligence, such maintenance being the performance of a governmental function; a city acts within its public governmental capacity in performing services for the promotion of public health, morals, education and welfare, but a city cannot be coerced to provide parks; People vs. Detroit, 28 Mich. 228; State vs. Edwards, (Mont.) 111 P. 734; the principle urged by plaintiff does not apply in the present case; the terms "private" and "public" as applied to the functions of a municipality have various connotations in the law. For example the business of selling coal is of a public nature; Jones vs. Portland (1919) 245 U.S. 217; the functions of a town may be governmental for some purposes and of a private character in others; Heino vs. Grand Rapids, 202 Mich. 363; Gushee vs. New York, 58 N.Y. 967; Commission Government provides for the superintendence of parks; 2085, 2086 C. S. and 1624, 1639 C. S. maintainance of parks unimposed by statute may nevertheless be a governmental function; Emmons vs. City of Va. (Minn.) 188 N.W. 561; White, Negligence of Municipal Corporations, Sec. 23; the Washington cases cited by defendant are not in harmony, but recognize the distinction resting in corporations conducted for gain; the Colorado decisions reveal their lack of soundness as authority; the maintenance of a public park is a governmental function according to the clear weight of authority; Bjork vs. City of Tacoma, 35 P. 1105; McGraw vs. Dist. of Columbia, 3 App. D. C. 405; Blair vs. Granger, 24 R.I. 317; Park Coms. vs. Prinz, (Ky.) 105 S.W. 948; Bishing vs. Park (N. J. L.) 78 A. 196 Evans vs. Sheboygan, (Wis.) 141 N.W. 265; Harper vs. Topeka (Kans.) 139 P. 1018; Nashville vs. Burns (Tenn.) 174 S.W. 1111; Robbins vs. Omaha (Nebr.) 160 N.W. 749; Nelson vs. Spokane (Wash.) 176 P. 149; Gero vs. Coms. (Mass.) 122 N.E. 415; Kellar vs. Los Angeles (Calif) 178 P. 505; Nebr. City vs. Nebr. 186 N.W. 374; White on Negligence of Municipal Corporations, Sec. 101, p. 133; the leading case is that of Hill vs. Boston, 122 Mass. 344; Heino vs. Grand Rapids supra recognizes the principle that the maintenance of parks, playgrounds and other recreations for public health and education are a public function; see also Sherman & Redfield (6th ed.) Vol. II, Section 267; McQuillan, Municipal Corporations, Sec. 2675; White Negligence of Municipal Corps Sec. 99; the turntable or attractive nuisance cases cited in plaintiff's brief have been criticised by many courts of high standing in this country; the doctrine does not apply in the present case, for the reason that the defendant was acting within its governmental capacity; it is true that children of tender age have been held to be incapable of contributory negligence, but the great weight of authority requires a child to use a degree of care, which an ordinary child of the same age, experience and intelligence would be expected to use, and where it appears from uncontradicted evidence that the infant did not use that degree of care, he is guilty of contributory negligence as a matter of law; Dietrich vs. Baltimore, 58 Md. 347; Anderson vs. Co. 161 Mo. 411; Virginia R. R. Co. vs. Clawsen, 111 Va. 313; Bess vs. Santa Fe R. (Kans.) 62 P. 996; Fitzhenry vs. Traction Co. (N. J.) 46 A. 698; Ryan vs. LaCross City R. (Wis.) 83 N.W. 770; Lafferty vs. Third Ave. R. 176 N.Y. 590; deceased was a healthy, normal boy aged 8 years and shown by the evidence to be intelligent, and able to go about and take care of himself, frequenting the Library for books, and in fact some of his books were found in a larger swing near by; he was standing up in a swing plainly marked "for babies only" and swinging so high that he raised the rods of the swing from the ground; it is clear that he did not exercise that degree of care expected of one of his age and intelligence. A city acting in its governmental capacity is not liable for negligent performance of its governmental functions when a licensee is involved.

KIMBALL, Justice. POTTER, Ch. J., and BLUME, J., concur.

OPINION

KIMBALL, Justice.

This is an action for damages for the death of plaintiff's intestate, a boy between 7 and 8 years of age, who was killed by the falling of a swing maintained by the defendant in a public park. The defendant, the City of Cheyenne, is a Municipal Corporation existing under special charter and operating under the commission form of government. The trial was terminated at the close of plaintiff's case in chief by a directed verdict for the defendant, and the plaintiff brings the case here by proceeding in error.

The petition charges that the child's death was caused by the negligence of the defendant in maintaining the swing in a defective and dangerous condition. The evidence showed that the swing was supported by four iron legs. Four corresponding iron pipes were set in cement in the ground. These pipes were meant to serve as sockets into which the supporting legs of the swing could be fitted and fastened. As originally set up and maintained the swing was securely anchored to the ground in this manner, and there was then no danger of its falling. Some time before the accident the pipes to which the legs of the swing should have been fastened became broken or worn and unfit for use for the purpose for which they were meant. There was then no way to anchor the swing to the ground. For a month or more before the accident the swing in this condition was permitted to be in the park and to be used by children of various ages. The jury might have found from the evidence that the swing in that condition was a dangerous machine likely to cause injury to children who used it, and that the defendant knew of the condition and danger. The swing had fallen at least once and would have fallen at other times had it not been held up or caught by older persons who happened to be present.

The jury might have found also that the defective condition of the swing was the proximate cause of the death of the child. It is claimed that the child was guilty of contributory negligence, and that the directed verdict may be upheld on that ground. The facts which the defendant claims are undisputed and on which it relies to establish negligence on the part of the child are substantially these: The swing was intended for use by babies or children of tender years, and had on it a sign "for babies only." At the time of the accident, the child was swinging vigorously and standing in the seat of the swing. He was a normal, healthy, intelligent child, and could have seen, as anyone else could, that the legs of the swing were not fastened to the ground.

The law requires a child to exercise for his own protection that care that may fairly and reasonably be expected from children of his age. In cases of children of the age of the deceased the question whether that care has been exercised is usually a question of fact to be left to the jury. Shearman & Redfield on Neg. (6th ed.) Sec. 73a. We believe the question should have been left to the jury in this case. If we assume that the sign "for babies only" meant that the swing should not be used by children of the age of the deceased, it is hardly to be contended that it necessarily gave notice of the...