Schauf's Adm'r v. City of Paducah

• Decision Date: 17 March 1899
• Citation: 106 Ky. 228,50 S.W. 42
• Parties: SCHAUF'S ADM'R v. CITY OF PADUCAH. [1]
• Court: Kentucky Court of Appeals

50 S.W. 42

106 Ky. 228

SCHAUF'S ADM'R v. CITY OF PADUCAH. ^[1]

Court of Appeals of Kentucky.

March 17, 1899

Appeal from circuit court, McCracken county.

"To be officially reported."

Action by the administrator of Willie Schauf against the city of Paducah to recover damages for the death of plaintiff's intestate. Judgment for defendant, and plaintiff appeals. Affirmed.

Thos E. Moss, for appellant.

L. D Husbands, for appellee.

HOBSON J.

Some years ago the city of Paducah bought a piece of land outside of the city limits, from which it got gravel. The gravel being removed, a considerable excavation was made, which in the course of time filled with water, and was used as a bathing and fishing place. After this the limits of the city were extended so as to include this pond, which stood out in the commons, and some distance from any highway. Appellant lived in the city, about a mile from the pond. His little son, 7 years of age, went down to visit a relative, living not far from it. While crossing the common, the boy caught a bird, and, seeing some children fishing at the pond, he went over to where they were fishing. The bird got away from him and fluttered out on the water. The child waded in after the bird. It fluttered out further from him on the water. He following it, got over his depth, and was drowned, there being no one present large enough to pull him out. For this, appellant, as administrator of the child, brought suit against the city, alleging that the death of the child was due to its negligence. At the conclusion of the evidence for appellant the court instructed the jury peremptorily to find for the appellee.

Appellant relies on Branson's Adm'r v. Labrot, 81 Ky 638, as sustaining a recovery in this case. In that case children were allowed to play about a pile of lumber insecurely placed, which, for this reason, fell on a child, and killed it. The court likened the case to that of a man setting a trap upon his premises, and it was on this ground that the judgment was rested. But accumulations of water are common about all cities, especially river towns. A large part of the farm houses of this state have ponds about them. The city was under the same obligation as any other lot owner, and no more. The child did not lose his life from the dangerous proximity of the pond to a highway, or from any secret danger, such as a great depth of water near the bank, but from his voluntarily wading out in the pond some 10 feet, after the bird. It was not the duty of the city to provide against such a contingency as this. In Gillespie v. McGowen, 45 Am. Rep. 365, a boy 8 years old, while fishing in a well in an old...