Toft v. City of Lincoln

• Decision Date: 10 November 1933
• Docket Number: 28612
• Parties: MARIE TOFT, ADMINISTRATRIX OF THE ESTATE OF CLARA TOFT, APPELLANT, v. CITY OF LINCOLN, APPELLEE
• Court: Nebraska Supreme Court

250 N.W. 748

125 Neb. 498

MARIE TOFT, ADMINISTRATRIX OF THE ESTATE OF CLARA TOFT, APPELLANT, v. CITY OF LINCOLN, APPELLEE

No. 28612

Supreme Court of Nebraska

November 10, 1933

APPEAL from the district court for Lancaster county: ELLWOOD B CHAPPELL, JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

1. Upon the ground that municipal corporations are not liable for negligence in the performance of governmental functions, a city is not ordinarily liable for injuries to persons using the instrumentalities provided for the public in a city park.

2. When a city maintains an artificial lake in a public park upon which boat rides may be taken for hire, and such boat upsets and a passenger is drowned, such lake does not constitute a public nuisance, even though weeds and brush may be growing therein along the edges, and stumps be found several feet below the water line.

Appeal from District Court, Lancaster County; Chappell, Judge.

Action by Marie Toft, administratrix of the estate of Clara Toft, deceased, against the City of Lincoln. Judgment for defendant, and plaintiff appeals.

Affirmed.

Perry, Van Pelt & Marti and L. B. Fuller, for appellant.

Max Kier and Lloyd E. Chapman, contra.

Heard before GOSS, C. J., ROSE and PAINE, JJ., and BEGLEY and HORTH, District Judges.

OPINION

PAINE, J.

Appellant as plaintiff brought action against the city of Lincoln, defendant and appellee, to recover $ 10,000 for the death by drowning of Clara Toft in a lake in Pioneers park, Lincoln. At the close of the plaintiff's evidence the court instructed a verdict for the defendant.

The appellant in her petition charged that the city of Lincoln, a municipal corporation, acquired by deeds, in 1928 and 1930, certain tracts of land, of approximately 600 acres, which were accepted and taken over by the city, and named Pioneers park, which park is located southwest of, and outside of, the city limits. That an artificial lake was created therein by damming up the waters of Haynes creek, thus causing the creek to overflow its banks, and creating a muddy, shoestring lake, with an irregular shore line, and scattered in this area, both above and below the surface of the water, were trees, snags, stumps, and underbrush. That its depth varied from 10 to 20 feet, with steep, slippery mud banks, which lake constituted an unsafe and dangerous condition, a menace to life, limb and health, and that the negligent, wilful, and wanton planning, construction, maintenance, and use of said lake by the city of Lincoln constituted a nuisance. That while in this incomplete condition, the city entered into an agreement with George E. Schmidt to operate and maintain a boating concession, in which he let out boats and gave boat rides for hire, and retained all fees collected therefrom, and compensated the city by helping to complete the lake and drainage system. That said Schmidt built a boathouse and landing wharf near the east end of the lake, and had a 17 1/2-foot outboard motor boat, with a carrying capacity of nine persons, the same being equipped in the bow with an automobile headlight, operated by storage battery. That there were no lights around said lake, no lifeguards or policemen on duty, and the lake was located approximately a mile from the nearest telephone, and further charged that said Schmidt was inexperienced and incompetent to operate such a boat in the narrow, tortious creek channel of the alleged lake. That at 10 p. m., July 26, 1930, four young men and four young ladies embarked on said motor boat, with the said Schmidt in charge and operating the same; that said boat was overloaded, and the load improperly distributed, and could not negotiate the sharp curves, and shipped considerable water. The said Schmidt suddenly turned the boat from its course, causing it to tip over and throw all of the passengers into the water, and the plaintiff's intestate was drowned. The plaintiff charges that the city of Lincoln caused the death of the plaintiff's intestate by "wantonly, carelessly, negligently, and knowingly creating and permitting an unsafe and essentially dangerous condition in Pioneers park, by planing and carrying out a public improvement within the limits thereof in the defective and unskillful manner as alleged herein, and before its completion setting up a commercial enterprise in connection therewith, with an inexperienced and incompetent person in charge thereof, and inviting and soliciting the patrons of said park to patronize and use the same, impliedly representing that the situation and condition were reasonably safe and that said lake could be properly used and enjoyed for such purposes, which affirmative negligence and maladministration resulted in the injury complained of." That she was a self-supporting minor, of the age of 18 years, earning $ 1,000 a year, from which she contributed to the support of her mother, who was dependent thereon. That a claim for $ 10,000 was filed with the city and rejected.

The demurrer to said petition being overruled, an answer was filed, which admitted that Clara Toft was drowned on July 26, 1930, and the defendant alleged that the proximate cause of death was her own negligence and the negligence of her companions in moving about in a boat on the lake in Pioneers park in such a manner as to cause it to overturn.

In examining the evidence in regard to the accidental upset of the boat, to see if it supports the argument of the plaintiff that the boat either struck a large submerged stump, or else some of the branches growing up from stumps might have caught in the propeller blade of the outboard motor, we have been unable to find any witness so testifying. Two of those in the boat testified that there were weeds or brush above the surface of the water along near the bank; another testified that the boat made a sudden turn in the water, and Arthur V. Shaffer told that a stump was visible near the place of the accident when the lake had been drained, but stated on cross-examination that he estimated the top of the stump would be about four feet under water before the lake was drained. The conclusion from all of the evidence indicates that the boat was heavily loaded at the front end, and was shipping some water, and Mr. Schmidt, upon complaint of those in the front end, said that he would "park" the boat, and immediately turned the boat toward the shore, when the upset occurred. We are unable to find any evidence to indicate that the upset occurred by reason of the boat striking any obstruction.

1. Among the nine grounds for reversal set up by the plaintiff, the one insisted upon the strongest in the briefs and argument is that the court erred in holding that, the accident having taken place within the limits of a public park, owned and operated by the defendant city as a governmental function, a municipal immunity arises.

There is a direct conflict between the decisions in various states upon the question whether a city park is conducted by a city in a governmental and public capacity, or in its private and proprietary capacity. 19 R. C. L. 1129, sec. 407.

From a careful examination of the authorities, it appears that the decisions of but a few states support the latter view holding the city responsible to the same extent as a private proprietor, this minority view being...