Somerfield v. The Land & Power Company
| Decision Date | 09 January 1915 |
| Docket Number | 19,135 |
| Citation | 93 Kan. 762,145 P. 893 |
| Court | Kansas Supreme Court |
| Parties | CLIFTON SOMERFIELD and GLADYS SOMERFIELD, Appellees, v. THE LAND & POWER COMPANY, Appellant |
Decided January 15, 1915.
Appeal from Cowley district court; CARROLL L. SWARTS judge.
Judgment reversed and cause remanded.
SYLLABUS BY THE COURT.
UNGUARDED CANAL--Not an Attractive Nuisance--"Turntable" Cases. An open, unfenced and unguarded canal, about fifty feet wide, with perpendicular banks about thirteen feet high, carrying a stream of water about seven feet deep through a populous city, maintained for commercial purposes, and along the banks of which the public passes and children gather to play and fish and swim, and into which a young child of the plaintiffs fell and was drowned, can not, of itself, be regarded as an attractive nuisance which will render the company owning and operating it liable for the death of the child under the doctrine of the "turntable" cases.
J. Mack Love, and C. W. Wright, both of Arkansas City, for the appellant.
C. T. Atkinson, of Arkansas City, A. M. Jackson, and A. L. Noble, both of Winfield, for the appellees.
Whether or not an open canal, about fifty feet wide with perpendicular banks about thirteen feet high and carrying a stream of water from six to eight feet deep, operated through the corporate limits of a populous city for commercial purposes, is an attractive nuisance, is the sole question presented for decision in this case.
The appellant, The Land & Power Company, operates through the corporate limits of Arkansas City a canal such as above described. During December, 1912, Charles Somerfield, a boy about three years of age, the infant son of the appellees, Clifton Somerfield and Gladys Somerfield, his wife, wandered from their home, which was about fifty feet distant from the canal, and falling into the canal was drowned. The parents thereupon brought this action against the appellant for $ 10,000 damages, alleging, among other things, that the appellant was negligent in failing to properly guard and protect the canal against children of tender years unable to appreciate the dangers of the canal. Appellees further alleged that it was the custom of the children and the general public to cross over the canal and to pass along its side; that children, attracted by the water and the canal, gathered, in season, on its banks to play, fish and swim; that several children had been drowned in the canal prior to the death of their son; and that appellant so operated and maintained the canal that it had become a menace to life; all because of the neglect and failure of appellant to properly guard, fence and protect the canal against the public and particularly against children of tender years. Appellant demurred to appellees' petition, and the demurrer being overruled it appeals and contends that the trial court erred in its ruling because such a canal can not be considered an attractive nuisance within the doctrine of the "turntable" cases as announced by this court.
The canal, as will be observed, has the characteristics of a natural stream and can no more be regarded as an attractive...
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