Vice v. City of Kirksville

• Citation: 217 S.W. 77,280 Mo. 348
• Decision Date: 04 December 1919
• Docket Number: No. 20443.,20443.
• Parties: VICE et al. v. CITY OF KIRKSVILLE.
• Court: United States State Supreme Court of Missouri

217 S.W. 77

280 Mo. 348

VICE et al. v. CITY OF KIRKSVILLE.

No. 20443.

Supreme Court of Missouri, Division No. 2.

December 4, 1919.

Rehearing Denied January 6, 1920.

Appeal from Circuit Court, Adair County; James A. Cooley, Judge.

Action by George T. Vice and another against the City of Kirksville. From judgment sustaining demurrer to the complaint, plaintiff appeals. Reversed, and remanded for further proceedings.

This action was commenced in the circuit court of Adair county, Mo., on March 30, 1917, by the filing of following petition, to wit:

George T. Vice and Musie L. Vice, Plaintiffs, v. The City of Kirksville, Defendant. Petition.

Plaintiffs for their cause of action against the defendant state the following facts:

That the defendant, the city of Kirksville, at all times in this petition mentioned and now is a municipal corporation and body corporate under the laws of the state of Missouri, and as such is entitled to sue and be sued in the courts of this state, and as such municipal corporation has the legal right to and does own real and personal property, exercising the rights and franchises and performing the functions, offices, duties, responsibilities, and liabilities of municipal corporations in this state of the class to which said city belongs, and is and was at all times a city of the third class, operating a city government, known as the city of Kirksville, and attempting to exercise the franchises, functions, and obligations of such city.

That plaintiffs are husband and wife, and are now and were such at all times in this petition mentioned; that they are the parents of Murle Vice, deceased.

That said Murle Vice was the infant daughter of the said George T. Vice and Musie L. Vice, plaintiffs, and that said Murle Vice lost her life by drowning in one of defendant's reservoirs in and near the city of Kirksville, Adair county, Mo., on the 2d day of April, 1916, and that this suit is prosecuted to recover damages for the loss of the life of the plaintiffs' said child and daughter, Murle Vice, by said plaintiffs, as the parents, to wit, the father and mother, of said Murle Vice, they being the persons entitled to sue under the laws of this state for the death of the said Murle Vice, caused as alleged by plaintiffs, by the carelessness and negligence of the defendant.

That the said Murle Vice was a youth of tender years, to-wit, of the age of 11 years, at the time of her death; that on the said 2d day of April, 1916, and long prior thereto, the defendant was the owner and in possession of a certain plot or body of ground, consisting of about 5 acres situated about 2 miles northwest of the center of said City of Kirksville, which was used in a general way as a water plant or part of a water system which was used in the pumping, retaining, clarifying, and furnishing of the water and water supply for said city. Said water plant, in addition to being used by said city for fire protection and city purposes, was likewise used at all times in this petition mentioned as a private water system and private business enterprise in a proprietary capacity in furnishing water for private consumers for domestic and commercial purposes and to its private citizens at a stipulated price and water rental, which said private use and proprietary employment yielded said city large sums of money and large income and revenues derived in that manner and for such use and source and income; that said plot of ground had located thereon a pumping station and a large reservoir or retaining basin into which the water was pumped by the defendant connected with other wells and basins and reservoirs which were used for clarifying, and in which the water was treated chemically and piped from one reservoir to others, which said reservoirs, basins, and wells were made in the ground and lined, curbed, and walled with cement; that one of said reservoirs or basins was called a coagulating reservoir or dead water basin or bin; that the same was practically square, and 40 or 50 feet across either way, and about 8 or 10 feet in depth, and walled with a smooth cement wall sloping slightly to the inside thereof; that said premises were located between the right of way of the Quincy, Omaha & Kansas City Railroad Company on the north side thereof, and the public road running east and west on the south side of said premises; that said premises were uninclosed, and were so constructed as to be inviting to children and other persons visiting said premises, and were dangerous to the lives of children frequenting said premises, as well as other persons.

That plaintiffs' daughter was drowned in what was known as said coagulating reservoir or dead water basin or bin, which will hereafter be designated as the dead water basin.

That said premises were frequented by many people of said city and others as an outing resort and place of pleasure and amusement, and was open to the public and much used and frequented by the public, men, women, and children, and was so known to the defendant, and had been so frequented, visited, and used long prior to the said 2d day of April, 1916, and the defendant, its officers, agents, and servants, had full knowledge of such uses and habits as hereinbefore alleged and stated; that said reservoirs and water basins and walls on said premises were practically level with the top or surface of the ground, and were unprotected and unguarded, and had no walls, fences, guards, or other protection to prevent children and others from falling therein, although much used and frequented by children and others, as hereinbefore stated, and was so known to be by the defendant, or by the exercise of ordinary care and diligence on the part of the defendant could have been so known and understood; that there were no ladders or other means of escape provided against the walls of said basin or wells, and no means of affording escape to any one falling therein or in any manner getting into said basin or being precipitated therein; that the maintaining of such premises as aforesaid was carelessness and negligence on the part of defendant, and the defendant, on said 2d day of April, 1916, and long prior thereto, carelessly and negligently maintained said premises in said dangerous and unsafe condition, and so maintained said basin in such careless and negligent manner aforesaid, and in such dangerous, unguarded, and unprotected condition as aforesaid, so as to constitute the same a pitfall and a nuisance in law, making the same both a private and public nuisance, dangerous to the lives of those frequenting or going upon said waterworks grounds as aforesaid, and the same was at all times in this petition mentioned known by the defendant to be in said unsafe and dangerous condition as aforesaid, and to be both a private and public nuisance, which was attractive to children and attracting and inducing children thereto, which was dangerous to the lives of those going upon and frequenting said premises as aforesaid.

"That on said 2d day of April, 1916, the deceased, Murle Vice, in company with another little girl of tender years, visited said water plant and said dead water basin on said premises, and while being and playing about said basin, which, as aforesaid, was attractive and inviting to children, said Murle Vice fell into said dead water basin, without legal negligence on her part, and was then and there drowned; that the drowning of said child was occasioned and caused by the carelessness and negligence of the defendant in permitting said premises to be unguarded and said basin to be unprotected, without guards and other protection to protect children of tender years and others from falling therein, and by reason of the defendant providing no means of escape from said basin as aforesaid, and by reason of said premises being dangerous to the lives of those frequenting and going upon said premises as aforesaid, and by reason of said premises being conducted and maintained by the defendant as a public resort and park as aforesaid, and by reason of the maintenance of said basins and premises in a dangerous condition as aforesaid so as to constitute in law a private and public nuisance as aforesaid, wherefore and by reason whereof the deceased, the said Murle Vice, lost her life by drowning and being drowned by the carelessness and negligence of the defendant.

"That the death of the deceased was not occasioned by the...