State ex rel. Kansas City v. Ellison

• Decision Date: 01 April 1920
• Parties: THE STATE ex rel. KANSAS CITY v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals
• Court: Missouri Supreme Court

220 S.W. 498

281 Mo. 667

THE STATE ex rel. KANSAS CITY v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals

Supreme Court of Missouri

April 1, 1920

Writ quashed.

E. M Harber and A. F. Smith for relator.

(1) The trial court erred in refusing to give the peremptory instructions asked by the defendant, and the decision of the Court of Appeals affirming its rulings in that regard is at variance with controlling decisions of this court. (a) A person has a right to use only that part of public property to which he is invited, either expressly or by implication. There being no invitation, express or implied, to use that part of the park on which plaintiff was playing at the time of his injury, the city is not responsible for his injury,. Ely v. St. Louis, 181 Mo. 729; Glaser v Rothschild, 221 Mo. 185. (b) The city had, and exercised, the right to restrict by ordinance the use of its parks as playgrounds. The ordinance offered in evidence made it unlawful to use that part of the park on which plaintiff was playing at the time of his injury. The plaintiff has never questioned the validity of this ordinance, and it must therefore be given full force and effect. Roper v Greenspon, 272 Mo. 296. (c) The wall in question was not such an "attractive nuisance" as to constitute an invitation to plaintiff to play upon it. O'Hara v Laclede Electric Co., 244 Mo. 404, 407; Kelly v. Benas, 217 Mo. 1; Buddy v. Union Terminal Ry. Co., 207 S.W. 821. (2) Plaintiff's instructions assumed against the defendant facts which were at issue; they were so worded as to confuse the questions at issue, and thus mislead the jury; they placed upon the defendant the duty to exercise a degree and amount of care not required by law, and they submitted issues not properly before the jury. The decision of the Court of Appeals approving the giving of these instructions is contrary to controlling decisions of this court. James v. Mo. Co., 107 Mo. 484; Ganey v. Kansas City, 259 Mo. 663; Hipsley v. K. C. Co., 88 Mo. 354; Baustian v. Young, 152 Mo. 325; Young v. Webb City, 150 Mo. 341, and cases supra.

Isaac B. Kimbrell and Martin J. O'Donnell for respondent.

(1) The opinion of the Court of Appeals, in construing the ordinance mentioned in the opinion, is not in conflict with any prior decision of this court for the reason that this court has never construed said ordinance. State ex rel. v. Sturgis, 276 Mo. 599. (2) The opinion is not in conflict with that of this court in Ely v. St. Louis, 181 Mo. 723, for the reason that this court in that case found that the place alleged to be a public street in that case was not, while here the opinion finds that the coping from which plaintiff fell was included in the public park and that plaintiff had been invited to use the coping and that he fell into the chasm or precipice which the defendant negligently failed to fence. Under the authorities the verdict was therefore for the right party. Healy v. City, 211 S.W. 59; Kuenzell v. City, 212 S.W. 876; Carey v. City, 187 Mo. 715; Capp v. St. Louis, 251 Mo. 256; Jenson v. City, 181 Mo.App. 359; Longwell v. City, 203 S.W. 657. (3) The claim by relator that this is a "turntable case" and that this court has concluded not to allow a child to recover in the future when he invokes that doctrine is contradicted by the opinion which expressly finds that the plaintiff was using the park and the coping, which was part of same, under the rules provided by the park board and at the invitation of relator. Furthermore, the turntable doctrine, though badly bent by some recent decisions of this court, is not yet broken. Carey v. City 187 Mo. 715; Bjork v. City, 135 P. 1009; Price v. Water Co., 58 Kan. 551; Pekin v. McMahon, 45 Am. St. 114, 154 Ill. 141. (4) Even had the trial court in its instructions assumed that certain facts put in issue by the pleadings were conclusively established by the evidence, yet an opinion approving such instructions would not conflict with the prior decisions of this court, but would be strictly in accord with same. Fullerton v. Fordyce, 121 Mo. 113; Davidson v. Transit Co., 211 Mo. 356; Donovant v. Co., 188 Mo.App. 93; Ragan v. Railway, 144 Mo. 623; Setebier v. Railway, 203 Mo. 702. (5) This court on certiorari cannot properly quash a judgment of the Court of Appeals for failure to reverse because of the giving of instructions, for it often happens that the appellate court finds that the verdict is for the right party, and in such case the statute and the common law prohibits a reversal because an erroneous instruction may have been given. Thompson on Charging the Jury, secs. 117, 118; Sec. 2082, R. S. 1909; State ex rel. v. Reynolds, 270 Mo. 589. (6) The relator's abstract of the record does not include the judgment of the trial or appellate court, nor does it include the record entries of the Court of Appeals, and consequently this court on scrutinizing the record will dismiss the case on its own motion. State ex rel. Pedigo v. Robertson, 181 S.W. 987; Huston v. Allen, 236 Mo. 645; Hays v. Foos, 223 Mo. 423.

GRAVES, J. Blair, Goode and Williamson, JJ., concur; Walker, C. J., dissents, in opinion filed, in which Williams, J., joins; Woodson, J., not sitting.

OPINION

In Banc

Certiorari.

GRAVES J. --

Certiorari to the Kansas City Court of Appeals. By this proceeding it is sought to have this court quash the judgment of the Court of Appeals in the case of Russell Barnett, by next friend, respondent, v. Kansas City, appellant.

The opinion of the Court of Appeals neither outlines the petition nor answer in the case, although reference, in a way, is made to both. Nor is the substance of the instructions considered by the opinion set out with clarity in the opinion. In the opinion we find this brief reference to the instructions:

"Defendant has presented a great number of criticisms to the instructions given for plaintiff. Instruction No. 1 covers the case as made by plaintiff and we do not find any substantial objections to it. It is supported by the petition and the evidence.

"Instruction No. 2 is no more than a harmless abstract statement of the law. The only objection made is that it is said to compel the city to keep all parts of the park reasonably safe for children. We must read the instruction in connection with the evidence. There is no dispute as to the parts of the park where children usually played and where plaintiff was playing when hurt, and allowing to the jury any common sense, they knew the question was whether care and prudence required defendant to have it reasonably safe at those places; and that was stated in Instruction No. 3.

"That instruction submitted whether the coping at the place where plaintiff was playing was attractive to children as a part of the recreation ground. That was no more than submitting to them whether it was not a part of the park likely to be chosen by children who frequented the grounds in quest of amusements they were permitted to enjoy there.

"Instructions Nos. 4 and 5, relating to the definition of negligence and the measure of damages, are not objectionable.

"Six instructions were refused for defendant. If what we have written is correct, they were properly refused. They consisted chiefly in absolute declarations as matters of law and were in practical effect demurrers to the evidence."

The evidentiary facts of the case are thus set out in the opinion:

"Plaintiff a boy eight years of age, instituted this action through a next friend, for damages resulting in serious injury to him by falling from the top of a retaining wall to the street below, a distance of nearly twenty feet. He recovered judgment in the trial court.

"At an elevated place within its limits the defendant city maintains a large reservoir which has a tract of land surrounding it, set apart and maintained by the city as a public park, known as 'Observation Park.' The reservoir is enclosed with a wire fence and around it is a gravel walk about six feet wide. The topography of the ground and the grading of the streets about it left precipices. These were supported by high stone walls topped with coping about 30 inches wide. At least one stone stairway led up from the street to the reservoir. There were seats in the park space and the public were free to go there at will. Band concerts were given of evenings, when thousands of people, half of them children, would attend. Children were in the habit of playing there. It was common for them to 'run races' on the gravel walk around the reservoir and to walk around on the coping. A watchman in charge knew this. There was evidence tending to show that the watchman ordered boys to keep off the grass and the rock wall. A boy twelve years old testified that boys, including himself, played at that part of the park. That he had lived near there 'quite a while and used to play there all the time.' That at the time plaintiff was hurt, the boys 'were divided into two armies and had been playing soldier about an hour and a half or more before he [plaintiff] got hurt.' There was also evidence tending to show that the watchman at other times than the time in question ordered the boys to keep off the grass. That at times when boys would get on the wall he (the watchman) would run them off and tell them to stay off, 'that we would get hurt -- once in a while maybe.' On the day of his injury, a number of boys, including plaintiff, were playing 'American Soldier,' and this included running on the top of these retaining walls. They were higher in some places than others and in some parts the ground sloped up from the top of the wall to the reservoir. At a place where it was about twenty feet down to the paved street plaintiff was on the wall engaged in the play, when, as he testified, ...