Von Almen's Adm'r v. City of Louisville

• Decision Date: 07 May 1918
• Citation: 202 S.W. 880,180 Ky. 441
• Parties: VON ALMEN'S ADM'R v. CITY OF LOUISVILLE ET AL.
• Court: Kentucky Court of Appeals

202 S.W. 880

180 Ky. 441

VON ALMEN'S ADM'R v. CITY OF LOUISVILLE ET AL.

Court of Appeals of Kentucky.

May 7, 1918

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

Action by Sylvester Von Almen's administrator against the City of Louisville and others. From a judgment for defendants plaintiff appeals. Affirmed.

Elmer C. Underwood and Boyce Watkins, both of Louisville, for appellant.

J. W S. Clements and Pendleton Beckley, both of Louisville, for appellee City of Louisville.

Fred Forcht, of Louisville, for other appellees.

CLARKE J.

The city of Louisville in December, 1915, connected an old culvert 2 feet in diameter which for many years had carried the surface water from the west to the east side of Preston street between Brandeis and Lynn streets, with a 30-inch city sewer leading to the river and located 9 feet below the surface by an 18-inch pipe, at a point under the center of the street, and at the same time constructed at the west end of the culvert to protect its mouth a brick wall 4 feet high 5 feet 10 1/2 inches long, and about 9 inches thick, with a concrete coping. This old culvert had existed at this point for many years before this territory was taken in to the city. Whenever there was a hard rain a pond was formed on the west side of the street, and it was to drain this pond more quickly after a rain as well as to prevent a discharge of the water upon the land east of the street that the sewer connection was made in the culvert. The mouth of the culvert on the west side was just inside the property line of Ann E. Barrett, deceased, and the wall constructed by the city to the mouth of the culvert in June, 1915, is wholly upon her land.

Late in the afternoon of Sunday, June 18, 1916, a hard, but not unusual, rain fell, forming a temporary pond on the west side of the street, which reached to within a few inches of the top of the wall at the mouth of the drain. Shortly thereafter Sylvester Von Almen and his brother, William Von Almen, six and eight years of age, respectively, were passing in the street on their way home when Irvin Age, a sixteen year old boy, called their attention to a snake in the pond approaching the culvert with some drift. As the snake, swimming with the current, came near the culvert, Age and Sylvester were standing side by side upon the wall, and as Age leaned forward in an effort to throw the snake out of the water both he and Sylvester fell in. Age got out, but Sylvester was drawn into the culvert, thence into the sewer, and was drowned; his body never having been recovered. His father, as administrator, instituted this action against the city, the executor, trustee, and devisees of Ann E. Barrett, to recover damages for his death, alleging negligence upon the part of the city in constructing and maintaining the street in an unsafe condition, and that the wall and pond were an attractive nuisance, known to be accessible to and frequented by children, and maintained by the city upon the Barrett property with the owner's knowledge and consent and for their benefit, without proper protection, for which the city and property owners were liable.

We do not think the facts justify a lengthy discussion of the alleged liability of the city for the accident upon the ground of negligence in the maintenance of the street, since the accident did not happen upon, or result from the use of, the street, the boys having purposely left the street in obedience to their childish instincts for amusement; and, although the place of the accident was barely off the street right of way and within less than four feet of the sidewalk, the uncontradicted proof shows that the wall, the pond, and the culvert with its sewer connection, considered severally or together, were not constructed or maintained in such a manner as to render any reasonable use of the street, by children or adults, dangerous; hence no danger could have been anticipated even to children playing in the street; and, as stated, this accident did not happen to decedent from any such use of the street, but from playing in the pond near the street where it was accesssible from the street, just as it would have been at any other point within sight of the street, but no more so. Clay City v. Abner, 82 S.W. 276, 26 Ky. Law Rep. 603; Carroll's Adm'r v. City of Louisville, 117 Ky. 758, 78 S.W. 1117, 25 Ky. Law Rep. 1888; Dillon on Municipal Corporations, § 1015; Zehe's Adm'r v. City of Louisville, 123 Ky. 621, 96 S.W. 918, 29 Ky. Law Rep. 1107; City of Louisville v. Hayden, 154 Ky. 258, 157 S.W. 4, 46 L. R. A. (N. S.) 1193; Spencer v. Mayfield, 43 Ind.App. 134, 85 N.E. 23; Dehanitz v. St. Paul, 73 Minn. 385, 76 N.W. 48.

It therefore seems to us quite clear that liability, if any, must rest upon the theory that the structure as erected and maintained by the city upon the property of the Barretts was an attractive nuisance, and, if such it was, the city is liable for its construction and maintenance unless it is an exercise of a governmental function, and the property owners are liable if they had actual or imputed knowledge of such use of their land, because it is admitted the place was easily accessible and unguarded. Although we have reached the conclusion that none of the defendants is liable for this distressing and unfortunate accident, even if it be assumed that the place of the accident was an attractive nuisance, a statement of the reasons for this conclusion renders necessary a determination of the part or quality of the structure that is the basis for such assumption.

Certainly a wall only four feet high is not by itself an attractive nuisance any more than a stairway, a fence, a low building, a stile block, or any other such immovable thing placed,...