Smith v. United Power & Light Corporation of Kansas

• Decision Date: 07 December 1935
• Docket Number: 32435.
• Citation: 51 P.2d 976,142 Kan. 723
• Parties: SMITH et ux. v. UNITED POWER & LIGHT CORPORATION (OF KANSAS).
• Court: Kansas Supreme Court

51 P.2d 976

142 Kan. 723

SMITH et ux. v. UNITED POWER & LIGHT CORPORATION (OF KANSAS).

No. 32435.

Supreme Court of Kansas

December 7, 1935

Syllabus by the Court.

That electric company operating plant located in city of 30,000 population constructed dam in natural water course and straightened banks thereof for purpose of conserving water did not of itself create attractive nuisance to children, so as to require company to erect fence along bank.

Electric company which constructed dam in creek and straightened banks thereof held not liable for death of twenty-two month old child which drowned in creek where child's mother was negligent in placing child in small garden which was fenced in by woven wire fence and gate leading thereto without fastening gate through which child wandered to creek.

1. The mere fact that a public utility company operating an electric plant located in a city of 30,000 population constructs a dam in a natural water course and straightens the banks thereof for the purpose of conserving water for its own use does not of itself create the stream a novel, dangerous, and attractive nuisance to children, which it is required to guard by the erection of a fence along the banks.

2. The question whether or not plaintiffs were subtenants of defendant as to the portion of the premises where death occurred is not decided.

3. Under the facts as detailed in the opinion, it is held the parents of the deceased child are precluded from recovering for its death by reason of their negligence.

Appeal from District Court, Reno County; John G. Somers, Judge.

Action by George H. E. Smith and his wife against the United Power &amp Light Corporation of Kansas. From a judgment for defendant plaintiffs appeal.

Carr W Taylor and Aaron Coleman, both of Hutchinson, for appellants.

A. C Malloy, Roy C. Davis, Warren H. White, and Frank S. Hodge, all of Hutchinson, and Thomas F. Doran, Clayton E. Kline, Harry W. Colmery, and M. F. Cosgrove, all of Topeka, for appellee.

THIELE Justice.

Plaintiffs appeal from a judgment rendered on the pleadings and their opening statement.

Omitting formal allegations and rearranging the order of others in an attempt to produce greater clarity, the petition states the defendant corporation is the owner of a certain block in Hutchinson, except six lots in the northeast corner, and excepting a triangular piece in the southwest corner south of Cow creek used as a city park; that Hutchinson has a population of approximately 30,000 and that Cow creek runs diagonally through the city; that Cow creek enters the above block about the center of the west side of the block and runs east and a little south to the east side of the block; and that the defendant operates a water and light plant on said property to supply the inhabitants with water and electricity. It is further alleged that as long as Cow creek was maintained in its natural condition without obstructions, it was not dangerous to children of tender age who might wander from home and along its banks because the stream with its ordinary flow would not have been deep enough to drown a child at its deepest point; that in its natural state through defendant's property the banks were not perpendicular, but sloped back so gradually that children of tender years would not have fallen into the stream, but that the defendant unlawfully and without authority constructed a dam near the east side of the block for the purpose of retaining the water above the dam at a much higher level than the natural flow of the stream and of a depth of from four to six feet, and on the north bank built up the bank and constructed a rock wall to support it, changing the bank from a sloping to an almost perpendicular bank, without a guard rail or sufficient fence to prevent infants of tender years from falling off said bank into the deep water; that by changing said stream from a natural flowing stream, which was not dangerous, into an artificial flume, canal, or conduit for manufacturing purposes without guarding the same along the north bank to prevent children of tender years from falling therein not only constituted negligence but willful and wanton negligence. It is further alleged that on August 21, 1933, plaintiffs were the parents of Phyllis Joan Smith, a child of twenty-two months, the family residing in a dwelling house situated north of Cow creek on defendant's property, and being subtenants of said dwelling; that the mother of the child was engaged in doing the family washing on the back porch of the dwelling and had placed the infant child with a five year old brother in a small woven wire inclosed garden plot at the rear of the residence; that after so placing the children she continued her work and in about twenty minutes the brother told her his sister had pushed open the gate, had gotten out of the inclosure, and had strayed away and he did not know where she went; the mother immediately started to find the child, sending an older child to look for it; a few moments thereafter she was informed by an employee of defendant the child was found drowned in Cow creek; that at said time the husband and father was absent from the home. The petition contains the following paragraph:

"These plaintiffs further state that said daughter, Phyllis Joan Smith, came to her death because of the willful and wanton negligence of the defendant in this, to-wit: That said defendant had failed to construct and maintain a fence sufficient to prevent children of tender years, and without sufficient intelligence to appreciate danger, who might happen to wander away from home, from falling into Cow Creek, and allege the fact to be that there was no fence nor guard maintained by said defendant along the north side of said bank on their premises to prevent the said daughter of plaintiff from falling into said Cow Creek at the time she fell therein and was drowned."

Defendant's answer will be noticed very briefly. It admitted corporate existence, ownership of property, the drowning of the child in Cow creek in the described block, but denied defendant was guilty of any negligence. It alleged defendant constructed the dam many years ago under oral authority and consent of the city, but denied that the dam increased the depth of the creek so as to make it more dangerous to children than it would have been in its natural state, and denied that defendant constructed an aqueduct flume, canal, or conduit as alleged in the petition, and that it was guilty of any willful or wanton negligence. The answer also contained a general denial, denied that plaintiffs had any legal capacity to maintain the action, and alleged the parents were guilty of negligence in permitting the child to wander away from home without care, which contributed to the death of the child and hence prevented their recovering damages. No reply seems to have been filed.

In his opening statement, plaintiffs' counsel read the petition and a portion of defendant's answer and then stated the evidence would show facts which we may summarize as being those pleaded in the petition. In a colloquy with the trial court as to whether plaintiff relied upon the fact the stream was an attractive nuisance or upon the failure of the landlord to keep the premises in a reasonably safe condition for the tenants, plaintiffs' counsel claimed the right to present both features. The...