Royston v. City of Charlotte, 124.

• Decision Date: 09 December 1936
• Docket Number: No. 124.,124.
• Citation: 278 Mich. 255,270 N.W. 288
• Parties: ROYSTON v. CITY OF CHARLOTTE.
• Court: Michigan Supreme Court

278 Mich. 255

270 N.W. 288

ROYSTON

v.CITY OF CHARLOTTE.

No. 124.

Supreme Court of Michigan.

Dec. 9, 1936.

Action by Howard Royston, administrator of the estate of C. H. Royston, deceased, against the City of Charlotte. Judgment for plaintiff, and defendant appeals.

Reversed.

Appeal from Circuit Court, Eaton County; Blaine W. Hatch, judge.

Argued before the Entire Bench, except POTTER, J.

C. B. Fisk Bangs, of Charlotte, for appellant.

G. Elmer McArthur, of Eaton Rapids, for appellee.

WIEST, Justice.

The city of Charlotte, in its public park, among playground equipment for children, provided a swing, constructed with timber posts set in concrete, notched at the tops to hold an iron crossbar about 4 inches in diameter and 16 feet in length, to which were attached, by chains, four swings. While plaintiff's decedent, a boy 11 years and 9 months of age, was using one of the swings a post broke off, the iron crossbar fell and fractured the boy's skull and he died two days later. This case was brought to recover damages, and defendant prosecutes review by appeal from a judgment in favor of plaintiff.

The swing was erected 14 years before the accident and the cause of the broken post was deterioration at its footing in the concrete which a proper inspection might have disclosed.

In denying a motion for judgment notwithstanding the verdict, the circuit judge stated in an opinion:

‘While it is true the power to establish and maintain parks as granted by the Constitution of the State, and the power or authority granted by the City Charter of Charlotte are merely permissive, nevertheless it is a governmental function in this State and the municipality is not liable for injuries received by negligence of its employes or agents in the maintenance thereof.’

This states the rule in this jurisdiction. Heino v. City of Grand Rapids, 202 Mich. 363, 168 N.W. 512, L.R.A.1918F, 528. See, also, Brink v. Grand Rapids, 144 Mich. 472, 108 N.W. 430;Wrighton v. City of Highland Park, 236 Mich. 279, 210 N.W. 250;Butler v. City of Grand Rapids, 273 Mich. 674, 263 N.W. 767.

This is also the rule in many other jurisdictions. See Epstein v. New Haven, 104 Conn. 283, 132 A. 467, where a boy was killed by the breaking of a support of a swing on which he was playing in a public park, and Piasecny v. Manchester, 82 N.H. 458, 136 A. 357, where a child fell from a defective seesaw, maintained by the city in a public playground.

The circuit judge also stated:

‘Did the fact that the swing in question was knowingly maintained in a faulty and dangerous condition by the defendant City, constitute an attractive nuisance and render the City of Charlotte liable by reason thereof?

‘I am of the opinion it did not.’

The court was right in so holding.

In Smith v. Iowa City, 213 Iowa, 391, 239 N.W. 29, 30, the doctrine of attractive nuisance was invoked by the plaintiff therein and held wholly inapplicable. In that case the city established in a public park a combined teeter-totter and merry-go-round. A little girl was severely injured while playing thereon.

We quote from the opinion:

‘The second count of the petition is based upon the so-called attractive nuisance doctrine. We dispose of this count first for convenience in discussion. It is alleged that the teeter-totter and merry-go-round had been permitted to get out of repair for a long period of time and to be, and remain, in a condition dangerous to children who sought to avail themselves of the privilege of using the device. The purpose of the establishment and maintenance of the park and of the particular, and perhaps other, devices therein was for the use and pleasure of children. Such was the only purpose for which the device complained of was installed. It was in its nature and purpose designed to be attractive to children. It therefore very clearly does not come within the definition of an attractive nuisance. Solomon v. Red River Lumber Co., 56 Cal.App. 742, 206 P. 498. Trespass is the basic requirement of an attractive nuisance. The very theory of an attractive nuisance is that the device or thing claimed to be such is, by its character or nature, calculated and likely to attract children on the premises, where they may suffer injury. Because of the attractive character of the instrumentality, the trespass is excused. * * * This court has always been reluctant to extend the doctrine of attractive nuisance. The park was designed as a recreation and...