Stuver v. City of Auburn

• Decision Date: 28 December 1932
• Docket Number: 23804.
• Citation: 171 Wash. 76,17 P.2d 614
• Parties: STUVER v. CITY OF AUBURN.
• Court: Washington Supreme Court

17 P.2d 614

171 Wash. 76

STUVER v. CITY OF AUBURN.

No. 23804.

Supreme Court of Washington

December 28, 1932

Department 2.

Appeal from Superior Court, King County; J. B. Alexander, Judge.

Action by Edgar James Stuver, by Hazel G. Stuver, his guardian against the City of Auburn. From judgment dismissing plaintiff's action, after sustaining demurrer to complaint, plaintiff appeals.

Affirmed.

Hyland Elvidge & Alvord and J. B. Olmsted, all of Seattle, for appellant.

I. B Knickerbocker and Thomas E. Agee, both of Auburn, for respondent.

BEALS J.

The city of Auburn, in the course of its municipal activities maintains a park open to the public, in which it has constructed certain playground apparatus, including a merry-go-round. Plaintiff, who was ten years old at the time of the accident which is the basis of this action, while playing in and about the merry-go-round, suffered an injury to his right hand, which resulted in the amputation of the index finger. This action was instituted for the purpose of recovering damages suffered by plaintiff because of this injury. Defendant demurred to plaintiff's amended complaint on the ground that the same did not state facts sufficient to constitute a cause of action, and, from a judgment dismissing the action, after the entry of an order sustaining the demurrer, plaintiff appeals.

The complaint alleges that the merry-go-round upon which appellant was injured consisted of a circular platform approximately twenty-five feet in diameter, operated by means of cogwheels in and about the center post; that these cogs were left open and exposed, and that children were accustomed to play in and about the same and insert sticks into the cogwheels while the platform was revolving; that these facts were well known to respondent, but that respondent permitted the apparatus to remain with the cogwheels open and unguarded, and permitted children to operate the same; that appellant, not understanding the danger of his act, in the course of his play in and about the merry-go-round, inserted a stick into the cogwheels, and that, while appellant's right hand was in close contact with the center post, the applicance was placed in motion, with the result that his hand was injured, as above set forth.

Appellant alleged that the merry-go-round was dangerous to children playing therewith, and constituted a nuisance and one particularly attractive to children, that appellant is entitled to receive from respondent compensation for his injuries, and that error was committed in sustaining a demurrer to his complaint and in dismissing the action. The sole question Before us is the sufficiency of the complaint as against a general demurrer. Appellant argues that, under the allegations of his complaint, it must be held that respondent created and maintained a nuisance, and that for this it is liable in damages to oen injured thereby, even though it be held that its act was performed in the course of the exercise by respondent of its governmental functions.

For the purposes of this case only we assume, as argued by appellant, that the doctrine of municipal immunity for negligence in the performance of acts embraced within governmental functions does not apply to the case of a nuisance created and maintained by a municipality. In support of his contention that the situation disclosed by this complaint shows the creation and maintenance of a nuisance, appellant cites many authorities.

In the case of Hoffman v. Bristol, 113 Conn. 386, 115 A. 499, 75 A. L. R. 1191, the Supreme Court of Connecticut held the defendant city liable in damages to one who used a diving board constructed and maintained by the municipality on the bank of a park lagoon, the board being approximately four feet above the surface of the water, which was less than four feet deep and usually so disclored that the shallowness of the water could not be discerned. In the case cited, the person injured used the diving board for the very purpose for which the same was designed and in a proper manner. The maintenance of the diving board was an invitation to the public to use the same, and, its use for the purpose for which it was constructed being manifestly dangerous, the board constituted a nuisance, and the municipality was properly held liable. The court held that the city was not liable for mere negligence.

In the case of Seattle v. Lloyd's, etc., Ins. Co. (C. C. A.) 253 F. 321, the city of Seattle was held liable for damages resulting from the acts of its port warden in causing a high explosive to be stored in a place where the storage of explosives was prohibited by ordinance. The placing of a large quantity of dynamite in a place where its explosion would be practically certain to cause injury constituted the creation of a nuisance for which those responsible should be helf in damages.

We are convinced that the merry-go-round, as described in appellant's complaint, should not be classified either as a nuisance as matter of law or to constitute such a dangerous agency as would justify a court or a jury in finding that the same constituted a nuisance as matter of fact. It cannot be said that the natural tendency of respondent's act was to create danger or cause injury to the children who might play on or about the merry-go-round, and certainly the apparatus was not in its inherent nature so dangerous as to render the hazard extreme and within the rule laid down by the Court of Appeals of New York in the case of Melker v. New York, 190 N.Y. 481, 83 N.E. 565, 16 L. R. A. (N. S.) 621, 13 Ann. Cas. 544.

In the case of Bernstein v. Milwaukee, 158 Wis. 576, 149 N.W. 382, L. R. A. 1915C, 435, the city was held not liable on account of injuries suffered by a child who was hurt on one of the amusement devices situated on a portion of the playground set apart for children older than the one injured. It was held that the city maintained the park under its governmental power, and it is indicated that liability might have been incurred had the maintenance of a public nuisance been permitted.

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