Richards v. Connell

Decision Date19 June 1895
Citation45 Neb. 467,63 N.W. 915
PartiesRICHARDS v. CONNELL ET AL.
CourtNebraska Supreme Court
OPINION TEXT STARTS HERE
Syllabus by the Court.

1. 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.

2. The plaintiff's intestate, a boy 10 years of age, who was accustomed to play in and about a pond of water on a vacant lot, the property of defendants, fell from a section of wooden sidewalk, which he was using as a raft on said pond, and was drowned. Held, that the defendants are not liable for damage, and their demurrer to the petition was properly sustained.

Error to district court, Douglas county; Doane, Judge.

Action by Fannie E. Richards, administratrix of the estate of George Bertram Weston, against the city of Omaha and others. There was a judgment for certain defendants, and plaintiff brings error. Affirmed.Breckenridge & Breckenridge and L. F. Crofoot, for plaintiff in error, cited Barrett v. Southern Pac. Co. (Cal.) 27 Pac. 666;Penso v. McCormick (Ind. Sup.) 25 N. E. 156;Crogan v. Schiele, 53 Conn. 186, 1 Atl. 899, and 5 Atl. 673;Toomey v. Sanborn, 146 Mass. 28, 14 N. E. 921;City of Indianapolis v. Emmelman, 108 Ind. 530, 9 N. E. 155;Khron v. Brock, 144 Mass. 516, 11 N. E. 748;Railway Co. v. Styron, 66 Tex. 421, 1 S. W. 161;Powers v. Harlow, 53 Mich. 507, 19 N. W. 257;Beck v. Carter, 68 N. Y. 283; 1 Thomp. Neg. p. 361, § 27; Barnes v. Ward, 9 C. B. 392; Hadley v. Taylor, L. R. 1 C. P. 53; Railroad Co. v. Stout, 17 Wall. 657.

Connell & Ives, for defendants in error.

POST, J.

This was an action in the district court for Douglas county by Fannie E. Richards, as administratrix of the estate of George Bertram Weston, deceased, against the city of Omaha, William J. Connell, and William E. Clark. It was held by the district court, on demurrer interposed by Connell and Clark, that the petition failed to state a cause of action as against them, which is the only ruling assigned as ground for the reversal of the judgment of dismissal as to the defendants named. The allegations of the petition, so far as it refers to the defendants in error, are in substance as follows: On the 29th day of June, 1891, and for a long time prior thereto, said Clark was the owner of lots Nos. 40 and 41 in Hickory Place, an addition to the city of Omaha, and said Connell was during said time the owner of the adjoining premises, described as Lot No. 59 in Reddick's Second Addition” to said city. That the defendants had for a long time prior to the day named negligently permitted the surface water to accumulate on said lots, thereby creating a deep and dangerouspond, and that they had failed and neglected to fence said lots, or to erect barriers of any kind to prevent children lawfully in the vicinity thereof from falling into said pond. That said lots are situated in the vicinity of one of the public schools of said city, and the pond aforesaid is not only dangerous to persons passing along South Twenty-Fifth street, adjacent thereto, but is in a public and much frequented place, and attractive to children of tender age, many of whom are accustomed to play about and upon said water. That on said June 29, 1891, the plaintiff's intestate, a boy 10 years of age, yielding to the natural impulse of childhood, went on said pond upon a section of wooden sidewalk floating thereon, from which he fell into said pond, and was drowned. The language of the petition is somewhat ambiguous, but there is in the brief of plaintiff's counsel no claim that the deceased, at the time of the accident, was passing along the street, or that the fatal result thereof is directly or indirectly chargeable to a proper use of the sidewalk. On the other hand, the construction in which both parties appear to concur is that the deceased had constructed a raft of the floating sidewalk, from which he fell while thus engaged at play on the pond. The petition, we think, fails to state a cause of action against the defendants, and that the demurrers were rightly sustained. The single question presented by the record is whether the owner of a vacant lot, upon which is situated a pond of water or a dangerous excavation, is required to fence it, or otherwise insure the safety of strangers, old or young, who may go upon said premises, not by his invitation, express or implied, but for the purpose of amusement, or from motives of curiosity. The authorities we find to be in substantial accord, and sustain the proposition that, independent of statute, no such liability exists. In Hargreaves v. Deacon, 25 Mich. 1, which was an action for the death of the plaintiff's son, a child of tender years, by drowning in a cistern left unguarded, it is said: Cases are quite numerous in which the same questions have arisen, but we have found none which hold that an accident from negligence on private premises can be made the ground of damages, unless the party injured has been induced to come there by personal invitation, or...

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