Reeder v. City of Omaha

• Decision Date: 17 May 1905
• Docket Number: 13,814
• Parties: JOHN A. REEDER, ADMINISTRATOR, v. CITY OF OMAHA
• Court: Nebraska Supreme Court

103 N.W. 672

73 Neb. 845

JOHN A. REEDER, ADMINISTRATOR, v. CITY OF OMAHA

No. 13,814

Supreme Court of Nebraska

May 17, 1905

ERROR to the district court for Douglas county: CHARLES T DICKINSON, JUDGE. Affirmed.

AFFIRMED.

Bowes & Hodder, for plaintiff in error.

C. C Wright and W. H. Herdman, contra.

DUFFIE C. ALBERT and JACKSON, CC., concur.

OPINION

DUFFIE, C.

Block 66, in Credit Foncier Addition to the city of Omaha, is bounded on the east by Sixth street, on the north by Center street, on the west by Seventh street and on the south by Cedar street. A deep ravine enters said block near the southeast corner, extending across the same and, as we understand, across Seventh street into the block west. Some 20 years ago or more the city graded Sixth and Cedar streets, filling the ravine at the intersection of these two streets at the southeast corner of block 66. Because of a failure on the part of the city to make adequate provision for a discharge of the water, a large pond was formed which, after a heavy rain, extended into the street at the intersection of Seventh and Center streets from 5 to 15 feet, but at no time did the water come nearer than 2 or 3 feet of the foot of the slope made by grading Sixth street, and ordinarily the edge of the water on the east side of the pond and nearest Sixth street was about 60 feet from the west line of said street. It further appears that the bank formed by the grade of Cedar street, and adjoining the pond on the south, was very abrupt; that this bank was about 60 feet above the level of the water in the pond, and the pond was surrounded with weeds and willows which made it difficult of access from either Cedar or Sixth street except by a path which extended from about the middle of block 66 on Sixth street in a southwesterly direction to the edge of the pond, the distance from the point where the path left Sixth street to where it reached the pond being from 60 to 70 feet. In July, 1900, Austin Reeder, the plaintiff's intestate, was playing with some other boys on Howard or Jackson street, a mile or more northwest of this pond. One of the boys suggested going to the pond for the purpose of taking a swim. The Reeder boy, aged about 9 years, with two other of his companions thereupon proceeded along Tenth, Eighth and Sixth streets to the point where the path above spoken of diverges from Sixth street, running southwesterly to the pond, and followed this path down to the water's edge. After playing in the water for some time, they came out and started to dress, when the Reeder boy went back to take a slide down the bank into the water, and getting beyond his depth, was drowned. It is further shown that at the time of the accident there was no sidewalk extending along the west side of Sixth street for a half block north of Cedar street, which would be at a point on Sixth street directly east of the pond. After the plaintiff had rested, the court gave a peremptory instruction to the jury to return a verdict for the defendant, and the only question argued on the submission of the case was the correctness of this instruction.

In Richards v. Connell, 45 Neb. 467, 63 N.W. 915, it was held: "The owner of a vacant lot upon which is situated a pond of water or dangerous excavation is not required to fence it, or otherwise insure the safety of strangers, old or young, who may resort to said premises not by invitation, express or implied, but for the purpose of amusement or from motives of curiosity." This rule was referred to with approval by Judge SEDGWICK in an elaborate opinion in Tucker v. Draper, 62 Neb. 66, 86 N.W. 917, where it is said: "We have no doubt that under the facts in that case the law was correctly applied."

It may be considered settled therefore that in this state the owner of property is under no obligation to guard a pond situated thereon against trespassers, or to provide for the safety of any who resort to the premises for their own satisfaction and not by the...