Van Alst v. Kansas City

• Decision Date: 05 March 1945
• Citation: 186 S.W.2d 762,239 Mo.App. 346
• Parties: John H. Van Alst and Catherine Van Alst v. Kansas City, Missouri, a Municipal Corporation
• Court: Kansas Court of Appeals

186 S.W.2d 762

239 Mo.App. 346

John H. Van Alst and Catherine Van Alst v. Kansas City, Missouri, a Municipal Corporation

Court of Appeals of Missouri, Kansas City

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. Pac. 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. Boyer, C., concurs.

OPINION

SPERRY

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 drowing 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. 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 8 1/2 feet. It was about 180 feet south of Independence Avenue, a paved thorofare, and 130 feet west of White Avenue, an unpaved by passable street in a residential area. It was located on privately owned land and, in order to reach it, it was necessary to travel over private property. It was located in a corn field and was not visible from any public street. One side was protected by a steep 10 foot high bank, and large trees grew around it. The area had been, or was being used by unidentified persons as a dumping place and there were tin cans, boxes, boards and other debris floating on the water's surface. The water was stagnant and of a greenish color. It was an altogether unsightly and unsanitary pool of water. The general conditions existing at the time of the drowning were not materially different from what they had been for many years prior thereto, although there was more water in the pond during wet seasons than there was during the dry summer months.

The evidence was to the effect that for many years prior to the accident, after the construction of the sewer and the formation of the pond, boys used it as a swimming hole. Various citizens who resided in the vicinity had many times reported this fact to the officers and agents of defendant and had requested that defendant take necessary steps to stop this practice. Such complaints were chiefly based on the unsanitary condition of the place and of the water.

On April 24, 1942, Alfred Van Alst, a boy then 14 years and 5 months of age and a student in grade 7A at a nearby school, and several schoolmates were dismissed from school at about 3:00 or 3:30 P. M. The sun was shining and the temperature was about 75 degrees. They discussed going swimming. Alfred, Wayne Murphy, 12 years of age at the time and grade 7B, and Douglas McDaniel, another schoolmate, went to a store and got some candy and ran down to the pond. One of the boys was pretty warm when they arrived at the pond. Shortly after they arrived two other schoolmates, Buddy Grady and Robert Sousley, also arrived. Some talk was had about going swimming and some of the boys present told Alfred that he had better not go in, that he could not swim. Alfred said he could swim and that he would prove it. He removed his clothing, dived in on his stomach, came up about 7 or 8 feet from shore, and began pounding the water with his arms. He was red in the face and "doubled up." He called for help, sank and was drowned.

Alfred was a bright, intelligent boy, worked at a bakery in spare time, and made average grades in school. His father had taught him to swim and...