Robbins v. City of Omaha

• Decision Date: 09 December 1916
• Docket Number: 19632
• Citation: 160 N.W. 749,100 Neb. 439
• Parties: FRANK ROBBINS, ADMINISTRATOR, APPELLANT, v. CITY OF OMAHA, APPELLEE
• Court: Nebraska Supreme Court

160 N.W. 749

100 Neb. 439

FRANK ROBBINS, ADMINISTRATOR, APPELLANT, v. CITY OF OMAHA, APPELLEE

No. 19632

Supreme Court of Nebraska

December 9, 1916

APPEAL from the district court for Douglas county: ALEXANDER C TROUP, JUDGE. Affirmed.

AFFIRMED.

John O Yeiser, for appellant.

John A Rine, W. C. Lambert and L. J. TePoel, contra.

MORRISSEY, C. J. FAWCETT, J., not sitting. ROSE, J., dissenting.

OPINION

MORRISSEY, C. J.

Plaintiff, as administrator of the estate of Francis D. Robbins, deceased, filed his petition in the district court for Douglas county, which, omitting the formal parts, alleged: That the city of Omaha is a metropolitan city having a population of more than 100,000; that it has no park commissioners, nor any special parks reserved by the state under any special acts of the legislature, but that all streets, parks and public property are under the supervision of a paid body of men officially called "City Commissioners;" that it is the duty of these commissioners to administer the parks for the use of the city, with regard to the health, life and safety of the citizens of the city; "that said city of Omaha owns a large tract of land, a part of which is known as Elmwood Park, and is improved, and a part of said land is undeveloped for park purposes; that upon a part of the undeveloped portion is a pond artificially constructed, and maintained for profit, in that it operated an hydraulic ram to flush water for toilets and the private use of employees of the city in the park department, and maintained to save corporate expense of constructing water mains; that said pond was not maintained for bathing or for the use of the public in either health or enjoyment, but was withheld from use for bathing or fishing; that said pond was fed by springs of cold water, rendering it unfit for bathers and dangerously inducing cramps; that said pond was over six feet deep, and was negligently maintained at that depth and over by maintaining said dam * * * and by a failure to fill deeper portions; that said city negligently suffered and permitted a raft to be maintained upon said lake for over two weeks before the injury complained of, and negligently permitted and suffered many children to use said raft and pond, knowing of its danger, and never inclosed the said pond; that said deep, cold pond of artificial construction, with said raft, was maintained in an obscure part of said land, without any protection against accidents of children, and without any life-saving devices or means of calling for rescue, as an attractive nuisance, and for no public good, and, further, as a dangerous enticement to children; that said Francis D. Robbins came into said park and went upon said raft on the 20th day of July, 1915, and the caretaker of said city saw said child upon said raft and in a dangerous position, and negligently permitted him to remain in said place of danger, and, while so playing in the dangerous place and situation, fell from said raft into the deep water of said pond at a place of five or six feet deep, causing said Francis D. Robbins to drown." It is further alleged that the deceased was a bright, healthy and intelligent boy, nine years of age, and there is the usual allegation that, by reason of his death, his parents have suffered damages; and there is a prayer for judgment.

To this petition the defendant city demurred, "for the reason that said petition does not state facts sufficient to constitute a cause of action against the defendant." The demurrer was sustained; plaintiff elected to stand on his petition; the cause of action was dismissed, and plaintiff has appealed.

The city claims that, in maintaining this park and pool, it was engaged in a purely governmental service, and that no liability could attach; but we do not deem it essential to a decision of this case to determine that point. The petition alleges that this artificial pond was in a remote part of the park, was out of the usual route of travel, and that it was maintained for profit....