Tavis v. Kansas City

• Citation: 89 Kan. 547,132 P. 185
• Parties: TAVIS ET AL. v. KANSAS CITY.
• Decision Date: 10 May 1913
• Court: United States State Supreme Court of Kansas

132 P. 185

89 Kan. 547

TAVIS ET AL. v. KANSAS CITY.

Supreme Court of Kansas

May 10, 1913

Syllabus

Two boys of appellees were drowned in a pool of a creek immediately below a culvert which the city had constructed in a street and across the creek, and it was claimed that the opening in the culvert for the passage of water was too small, that in times of freshets the water in the creek was held back by the culvert and forced through the opening in such a way as to make a pool in the creek below the culvert that the place was attractive to boys who frequently went to the pool to wade and swim, and that as it was unfenced and unguarded the city, under the attractive nuisance doctrine was responsible for the drowning of the boys, and liable for the loss sustained by appellees. The land where the pool was formed was the property of a private owner and over it the city had no control, and it did not appear that any officer of the city knew of the existence of the pool. Held, that the case does not come within the attractive nuisance doctrine, and that the city is not liable for the loss.

Appeal from District Court, Wyandotte County.

Action by James Tavis and others against the City of Kansas City. From a judgment for plaintiffs, defendant appeals. Reversed and remanded, with directions.

R. J. Higgins and W. H. McCamish, both of Kansas City, for appellant.

J. O. Emerson, and David J. Smith, both of Kansas City, for appellees.

OPINION

JOHNSTON, C. J.

The two sons of appellees were drowned in a pool four feet deep in Jersey creek, a natural water course which runs through the city of Kansas City, and empties into the Missouri river. Where Jersey creek crosses Thirteenth street, the city had made a fill and had also built a culvert leaving an opening for the passage of water 70 feet long, 15 feet high, and 8 feet wide, and the pool was on the grounds of a private owner near the end of the culvert. In appellees’ petition it was alleged that, because of the height of the fill and the smallness of the opening in the culvert, the flow in the stream was obstructed, so that in times of freshets the water was forced through the culvert in such a way as to cause a pool to form below the culvert, the floor of which, it is alleged, was higher than the natural bed of the stream. This pool, it was alleged, was in a populous part of the city, and for some time before the accident children had been attracted there and had been habitually wading and swimming in the pool. It is averred that it was a dangerous place which had been left unfenced and unguarded, and that no notice warning children of the dangers of the pool had been posted or given. It was alleged that, because of the negligence of appellant, the children of appellees were lured to the pool, and that they lost their lives while wading and swimming in it. The verdict of the jury awarded damages to appellees in the sum of $5,000, and with the general verdict they returned answers to special questions as follows:

"(1) Q. Was Jersey creek a natural water course at the time of the death of plaintiffs’ children?

A. Yes.

(2) Q. How deep was the water where the boys drowned?

A. Four or five feet deep.

(3) Q. How long immediately prior to the drowning had the pool or pond continuously existed without change in depth of water at the place the boys went under?

A. Do not know.

(4) Q. Is the bed of Jersey creek subject to change, and, if so, at what times does it change as to depths?

A. Yes; after heavy rains.

(5) Q. Was the bed of Jersey creek subject to changes in depth at and prior to the time the boys were drowned at the place of drowning?

A. Yes.

(6) Q. Had there been a heavy rain or freshet a short time before the date of the drowning, and, if so, about how many days?

A. Yes; about eight or ten days.

(7) Q. Was the bed of Jersey creek at the point in question, and the water therein, subject to change to such extent that at times prior to June 1, 1911, boys of the age of the deceased could pass the entire length of said pond by wading without getting beyond their depth?

A. Do not know.

(8) Q. Was said pond on public or private property?

A. Private.

(9) Q. Was there anything about the appearance of said pond or pool which could be observed from passing along the public streets of defendant city at any time prior to June 1, 1910, which indicated in any way the depth of said pool, and, if so, what was it and at what time?

A. No.

(10) Q. Did any of the officers of the defendant city prior to June 1, 1910, have any actual knowledge of the existence of said pool?

A. Do not know."

"(12) Q. How high did the masonry of the culvert at the east end extend as compared with the surface of the traveled roadway over the culvert at Thirteenth street?

A. Do not know.

(13) Q. Were there any trees and brush between the street and the pool in question?

A. Yes.

(14) Q. If you answer the last question in the affirmative, state whether or not the trees and brush and the masonry obstructed the view of this pool from Thirteenth street?

A. Yes.

(15) Q. Was the culvert in question of sufficient size to carry off all water which might reasonably be expected to fall in the basin drained thereby?

A. No.

(16) Q. If your answer to the last question is in the negative, then state at what time or times prior to June 1, 1910, there was a failure in this respect.

A. Eight or ten days prior.

(17) Q. Was it practicable to fence said pool so as to prevent egress thereto through the bed of the stream?

A. No."

It is not easy to understand the grounds upon which the city was held liable for damages in this case. The city did not own or control the ground where the pool existed, and it had no right to build fences or barriers around it. As the findings show there were trees and brush between the street and the pool, and people passing along the street could not observe the depth of the water in that part of the creek, and it does not appear that any officer of the city actually knew of the existence of the pool. If the faulty construction of the culvert by the city injuriously affected lands of owners either above or below the culvert, such owners might have a right of action against the city, but the owner of the lot upon which the pool is situated is not complaining, and neither do the appellees make complaint against the proprietor, the only one who had a right to fence in the pool or build barriers around it. The appellees ask to have the attractive nuisance doctrine extended far enough to hold a party who does not own or control the land where the nuisance exists liable. The doctrine has no application to the city even if the form of...