Roman v. The City of Leavenworth

• Decision Date: 05 July 1913
• Docket Number: 18,342
• Citation: 133 P. 551,90 Kan. 379
• Parties: WLODYSLAUS ROMAN, a Minor, etc., Appellant, v. THE CITY OF LEAVENWORTH, Appellee
• Court: Kansas Supreme Court

133 P. 551

90 Kan. 379

WLODYSLAUS ROMAN, a Minor, etc., Appellant, v. THE CITY OF LEAVENWORTH, Appellee

No. 18,342

Supreme Court of Kansas

July 5, 1913

Decided July, 1913.

Appeal from Leavenworth district court.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. ATTRACTIVE NUISANCE--City Dump--Erroneous Instructions. In an action for damages alleged to have been sustained by a boy eleven years old while playing on a city dump, by falling into a smouldering fire--such dump being clearly an attractive nuisance--the court gave correct instructions at the request of the plaintiff, but also gave several at the request of the defendant which were erroneous. Held, that as the jury, which found for the defendant, were as likely to be influenced by the wrong as by the right instructions, the plaintiff has not had his case presented under a proper interpretation of the law, and a new trial should be granted.

2. Maintenance of, Not its Establishment, Material. In such a case the maintenance of the dump by the city and not its establishment was material, and the city was required to use reasonable care to keep children away and from being injured there.

3. Insufficient Warning--Instructions. Such dump being in charge of a boss employed by the city, it was material whether or not he, with the knowledge and acquiescence of the city exercised control over the whole dump rather than whether or not he had express authority so to do. A mere warning to the plaintiff to be careful, uttered by a private person engaged in unloading spoiled fruit at such dump, would not relieve the city from liability even if the plaintiff was sufficiently intelligent to appreciate the danger of going over the embankment, which formed a part of the dump, after spoiled fruit, but proceeded and sustained injuries "at a place where a prudent person would not anticipate any one would go," if the testimony should show that the place where the injury occurred was a smoldering fire of some weeks' probable duration, over the embankment, of which fire the plaintiff had no knowledge.

Arthur M. Jackson, of Leavenworth, for the appellant.

Benjamin F. Endress, and C. P. Rutherford, both of Leavenworth, for the appellee.

OPINION

WEST, J.:

The plaintiff, by his next friend, sued to recover damages for injuries sustained while playing on the city dump. The jury returned a verdict in favor of the defendant, and the plaintiff appeals and complains principally of certain instructions given over his objection.

The defendant appears to contend that the dump in question was not an attractive nuisance within the principles of former decisions by this court. The testimony of various little boys who played about the place furnishes a most graphic and unmistakable picture of an attractive nuisance within the principles of all the decisions which recognize such a thing. It appears that the dump is located at the foot of Second street and a man named Haley, known as boss of the dump, is employed by the city at a monthly salary and his duties require him to be at the place from eight o'clock until five, and he testified that:

"The whole city comes out there with stuff. The city carts haul garbage and rubbish there to dump it. There is no other place of that kind in the city. I have a little shanty on the dump. It was built by the city."

The superintendent of streets testified that one of the duties of the man in charge of the dump was to keep the stuff pushed back into the river.

"There are railroad tracks on the west side of the dump. Nearly all of the dump is on the right of the track. The chute is located near the center of the dump. There was also a butting board about twelve or fourteen feet north of the chute. When manure or anything of that kind accumulates on the dump it catches fire and during last summer it was on fire several times. . . . We never had a guard or fence on either side of the chute or dumping board. . . . I can not say just how long the fire was burning before the little boy got burned. Fire would catch along there, and, as a rule, we would shove manure and other stuff into it and let it catch fire. The fire that burned the little boy might have been burning for three or four weeks before that time or it might have been burning longer. The fire was usually a smoldering one. There was never a visible blaze. . . . There are no fences or guards on the railway tracks and the boys or any person could walk right in there."

Sylvester Kozmin, aged nine, testified that he knew the plaintiff and was at the dump the morning he got burned. Two others were with him. He further testified:

"I was there when 'Jimmie' got into the fire. He was going after a watermelon when he fell into the fire. Mrs. Palka helped to get him out of the fire. I saw her pull him out. . . . I went down there nearly every day for about a month before this happened. I saw other boys there. They got slop down there. . . . There was a man there unloading watermelons. He threw out a watermelon and 'Jimmie' tried to get down after it. He was trying to beat me to it. The watermelon rolled down into the river and 'Jimmie' fell into the fire hole."

The plaintiff testified that he was eleven years old, was at the dump on July 10, 1911. His mother had told him to go to the store, and when he got there some of the boys told him they had found some money on the dump, "so I was going there and find some money. . . . I was running around on the dump and I saw a watermelon down there and was going to jump after it. I seen nothing of the fire and I jumped into the fire. This fire was on the north side of the chute about half way between the top and the water. I...