Van Alst v. Kansas City, Mo., 20522.

• Decision Date: 05 March 1945
• Docket Number: No. 20522.,20522.
• Citation: 186 S.W.2d 762
• Parties: JOHN H. VAN ALST AND CATHERINE VAN ALST v. KANSAS CITY, MISSOURI, A MUNICIPAL CORPORATION.
• Court: Missouri Court of Appeals

186 S.W.2d 762 JOHN H. VAN ALST AND CATHERINE VAN ALST
v.
KANSAS CITY, MISSOURI, A MUNICIPAL CORPORATION. No. 20522. Kansas City Court of Appeals. Missouri. March 5, 1945.

Error to Circuit Court of Jackson County. — Hon. T.J. Seehorn, Judge.

REVERSED.

Wm. E. Kemp, John J. Cosgrove and T. James Conway for plaintiff in error.

(1) The court erred in refusing to give defendant's instructions in the nature of a demurrer requested at the close of the plaintiffs' evidence and at the close of all the evidence. (a) The drowning of plaintiffs' minor son did not result from any defect in the street, and under all of the facts there was no duty owed to him and hence no liability on the part of the city. Davoren v. Kansas City, 308 Mo. 513, 273 S.W. 401, 40 A.L.R. 473; Arnold v. City of St. Louis et al., 152 Mo. 173, 53 S.W. 900; Shearman and Redfield on Negligence, Sec. 505, p. 598; Overholt v. Vieths, 93 Mo. 422, 6 S.W. 74; Kelly v. Benas, 217 Mo. 1, 116 S.W. 557; Moran v. Pullman Palace Car Co., and St. Louis, 134 Mo. 641, 36 S.W. 659; Butz v. Cavanaugh and City of St. Louis, 137 Mo. 503, 38 S.W. 1104; Rallo v. Heman Const. Co. et al., 291 Mo. 221, 236 S.W. 632; Murphy v. City of Brooklyn, 23 N.E. (N.Y.) 887; Kowertz v. Dible (Mo. App.), 27 S.W. (2d) 61; Volz v. City of St. Louis, 326 Mo. 362, 32 S.W. (2d) 72. (b) Plaintiffs' evidence shows that their minor son was guilty of contributory negligence as a matter of law. Turner et al. v. City of Moberly, 224 Mo. App. 683, 26 S.W. (2d) 997; McGee v. Wabash Railroad Co., 214 Mo. 530, 114 S.W. 33; State ex rel. v. Trimble, 315 Mo. 32, 285 S.W. 455, 49 A.L.R. 1047; City of Menard v. Coats, (Tex.), 60 S.W. (2d) 831; Spillane v. Mo. Pac. Ry. Co., 135 Mo. 414, 37 S.W. 198; Graney v. St. Louis Ry. Co., 157 Mo. 666, 57 S.W. 276; Hight v. American Bakery Co., 168 Mo. App. 431, 151 S.W. 776; Herdt v. Koenig, 137 Mo. App. 589, 119 S.W. 56; Payne v. Chicago & A.R. Co., 136 Mo. 562, 38 S.W. 308; Shields v. Costello, (Mo. App.), 229 S.W. 411; Berry v. Majestic Milling Co., 304 Mo. 292, 263 S.W. 406; Boesel v. Wells Fargo, 260 Mo. 463, 169 S.W. 110; Henry v. Mo. Pae. R.R. Co., 141 Mo. App. 351, 125 S.W. 794; 107 A.L.R. (Ann.) 140. (c) Plaintiff's minor son was a trespasser to whom no duty was owed at the time of his death 45 C.J., Negligence, Par. 134, p. 145; 36 A.L.R. (Ann.) 34; 39 A.L.R. (Ann.) 486; 45 A.L.R. (Ann.) 982; 53 A.L.R. (Ann.) 1344; 60 A.L.R. (Ann.) 1444; Shaw v. Railroad, Mo. 194 S.W. 1151; Smith v. Dold Packing Co., 82 Mo. App. 9; Overholt v. Vieths, 93 Mo. 422, 6 S.W. 74; Rallo v. Heman Const. Co. et al., 291 Mo. 221, 236 S.W. 632; Moran v. Pullman Car Co. and St. Louis, 134 Mo. 641, 36 S.W. 659; Butz v. Cavanaugh and City of St. Louis, 137 Mo. 503, 38 S.W. 1104; Barney v. Railroad, 126 Mo. 372, 28 S.W. 1069; Witte v. Stifel, 126 Mo. 295, 28 S.W. 891. (2) The court erred in giving plaintiffs' instruction No. 1 which directed a verdict in their favor for the reason that it authorized the jury to find for the plaintiffs upon five theories of law, under four of which defendant is not liable. Raymond, Missouri Instructions, Vol. 1, Sec. 70; McQuillin, Municipal Corporations (2d), Sec. 2812, p. 1110, p. 1102; Davoran v. Kansas City, 308 Mo. 513, 273 S.W. 401, 40 A.L.R. 473; Arnold v. City of St. Louis et al., 152 Mo. 173, 53 S.W. 900; Moran v. Pullman Car Co. and St. Louis, 134 Mo. 641, 36 S.W. 659; Butz v. Cavanaugh and City of St. Louis, 137 Mo. 503, 38 S.W. 1104; Kennedy v. City of Nevada, 281 S.W. 56; Volz v. City of St. Louis, 326 Mo. 362, 32 S.W. (2d) 72; Bagby v. Kansas City, 338 Mo. 771, 92 S.W. (2d) 142; Kiley v. Kansas City, 87 Mo. 103, 56 Am. Rep. 443; Holman v. Clark and City of St. Louis, 272 Mo. 266, 198 S.W. 868; Harman v. St. Louis, 137 Mo. 494, 38 S.W. 1102; Monsour v. Excelsior Tobacco Co. (Mo. App.), 115 S.W. (2d) 219.

R.C. Southall for defendants in error.

(1) (a) Under the facts the city violated its duty in respect to the pond created and permitted by it in the construction of Gooseneck Sewer. Davoren v. Kansas City, 273 S.W. 401. (b) The evidence did not show that plaintiffs' minor son was guilty of contributory negligence as a matter of law. Turner v. City of Moberly, 26 S.W. (2d) l.c. 998; Bartlett v. Taylor, 174 S.W. (2d) l.c. 850; Cento v. Security Building Co., 99 S.W. (2d) 1; O'Connor v. Mo. Pac. Ry., 94 Mo. 150, 7 S.W. 106; Herdt v. Koenig, 137 Mo. App. 589, 119 S.W. 56. (c) Plaintiffs' minor son was not a trespasser at the time of his death. Davoren v. Kansas City, 273 S.W. 401; Godfrey v. K.C. Light Co., 299 Mo. 472, 253 S.W. 233. (2) The court did not err in giving plaintiffs' instruction 6. Davoren v. Kansas City, 273 S.W. 401; Keyes v. C., B. & Q R.R., 326 Mo. 236, 31 S.W. (2d) 50; Bowers v. K.C.P.S. Co., 328 Mo. 770, 41 S.W. (2d) 810; Hill v. St. L.P.S. Co., 64 S.W. (2d) 633; Rowland v. Boston Ins. Co., 55 S.W. (2d) 1011; Roth v. St. Joseph, 180 Mo. App. 381, 167 S.W. 1154; 171 S.W. 944; Salmon v. Kansas City, 241 Mo. l.c. 53, 145 S.W. 16.

SPERRY, C.

John H. and Catherine Van Alst, husband and wife, plaintiffs herein, sued Kansas City, Missouri a Municipal Corporation, defendant, for damages caused by the drowning of plaintiffs' son in a pond located within the city limits of Kansas City and on real estate alleged in the petition to be owned by the Samuel Estate Company and by Clarke W. Brooks. Thereafter, on motion of defendant Kansas City, the Samuel Estate Company and Clarke W. Brooks were made parties defendant but said last named defendants were discharged on demurrer before trial. Trial to a jury resulted in a verdict and judgment in the amount of $3500, in favor of plaintiffs and against defendant Kansas City, Missouri. The case reaches this court on writ of error.

Defendant predicates error on the overruling of its demurrer at the close of all of the evidence. This necessitates a review of the facts, of which there was substantial evidence, from a standpoint most favorable to plaintiffs' right of recovery.

Many years prior to the drowning of plaintiffs' son defendant constructed what is known as Gooseneck Sewer, on a right of way condemned and used for said purpose. The sewer follows the bed of Gooseneck Creek, excepting that it cuts off the curves, in a northwesterly direction across Independence Avenue, in Kansas City, and empties into the Blue River. Since the construction of the sewer the surface water of the area formerly drained by Gooseneck Creek is carried by said sewer.

The sewer runs straight at the point where the accident occurred, thereby cutting off a bend of the creek. The sewer, together with dirt deposited from construction of the sewer, constitutes a dam across the lower part of this bend, thereby preventing the surface water which accumulates in the old creek bad at this point from draining out. No outlet for said water so accumulating was provided.

186 S.W.2d 763

Shortly after the sewer was constructed a body of water formed in this bend, known as Gooseneck Pond. At the time of the accident the northerly end of the pond was some 75 feet south of the sewer and was approximately 130 feet long, 25 to 30 feet wide and ranged in depth from a foot or so to 8½ feet. It was about 180 feet south of Independence Avenue, a paved thorofare, and 130...