Williams v. Kansas City, Clay County & St. Joseph R. Co.

• Citation: 6 S.W.2d 48,222 Mo.App. 865
• Parties: MORRIS A. WILLIAMS ET AL., APPELLANTS, v. KANSAS CITY, CLAY COUNTY & ST. JOSEPH RAILWAY COMPANY, RESPONDENT. [*]
• Decision Date: 30 April 1928
• Court: Court of Appeals of Kansas

6 S.W.2d 48

222 Mo.App. 865

MORRIS A. WILLIAMS ET AL., APPELLANTS, v. KANSAS CITY, CLAY COUNTY & ST. JOSEPH RAILWAY COMPANY, RESPONDENT. ^[*]

Court of Appeals of Missouri, Kansas City

April 30, 1928

Appeal from the Circuit Court of Buchanan County.--Hon. Sam Wilcox Judge.

Affirmed.

Judgment Affirmed.

W. K Amick and C. W. Meyer for appellant.

Chas H. Mayer, Floyd M. Sprague and Roscoe P. Conkling for respondent.

ARNOLD, J. Bland, J., concurs. Trimble, P. J., absent.

OPINION

ARNOLD, J.

--This is an action in damages for the death of plaintiffs' minor son, alleged to have been due to the negligence of defendant.

The facts of record are that plaintiffs are husband and wife residing near St. Joseph, Buchanan county, Missouri. Defendant is a railroad corporation, organized and existing under the laws of Missouri and, as such, owns a railroad right of way and tracks between the cities of Kansas City and St. Joseph in said State, upon which it operates cars and trains for the transportation of freight and passengers.

The petition alleges that plaintiffs were the parents of William Francis Williams, six years of age at the time of his death on June 22, 1926, on which date said child was drowned in a water hole located on defendant's right of way west of its tracks, close to and opposite a culvert which passed under said tracks about 300 feet south of Enright station and near the south corporate limits of the city of St. Joseph. The negligence charge is that defendant negligently caused a water hole to be on its right of way and maintained thereat "a nuisance attractive to children," and negligently and in violation of law, failed to fence its right of way with a lawful fence. The petition seeks damages in the sum of $ 10,000, but at the close of plaintiffs' evidence, and by leave of court, the petition was so amended as to ask damages in the sum of $ 7500.

The answer is a general denial. There was a directed verdict for defendant and plaintiffs have appealed.

The evidence shows that the boy came to his death by drowning in a creek which passed under defendant's right of way and tracks at the point heretofore indicated. The evidence further shows that the said creek was a natural watercourse of rather moderate dimensions and that defendant had constructed a concrete culvert about ten feet in width and from seven to nine feet high, with a flat bottom or floor, arched at the top, at the point where the said creek passed under its tracks. The culvert ran approximately east and west under the tracks and at each end there was an abutment to keep the dirt from sliding. At the west end of said culvert there was a spillway. Beyond the spillway and adjoining it at the west end thereof, there was a concrete apron over which the water ran, forming a waterfall from three to five feet high to the level of the creek below the apron. Ordinarily the creek was only about three inches deep at the culvert and a very small stream of water ran through the spillway and over the apron at one place, about as much as would run from a one and one-half to one and three-fourths inch pipe, the remaining surface of the apron being dry most of the time; but during rains the creek carried a large volume of water, depending upon the severity of the rains. It appears that a short time before the boy was drowned, perhaps a day or so, there was a heavy rain so that at the place where the water spilled from the apron there was a hole seven to eight or ten feet in width and six or seven feet deep, at the time the child was drowned. The body of the boy was found in this hole, or pool of water and under the point of the apron, or shelf, which had been created by the water pouring over the apron.

There was testimony that the vicinity is quite thickly populated and that off and on children had played up and down the creek for a period of two or three years; that boys had been seen wading at the point where plaintiffs' son was drowned three or four days prior to the tragedy, though at that time the water was only about knee deep. It appears that at different points along the creek holes are washed our during high water but these are filled again during low water, and then during heavy rains are washed out again by the action of the water.

The testimony shows that decedent lived with his father and mother about two blocks east of the creek and that on the day of the tragedy, in company with a playmate, Woodrow Wilkerson, decedent left the home of a neighbor, Mr. Phillips, for the purpose of going in swimming at the point in the creek where he was subsequently drowned. The testimony of the Wilkerson boy is all the record affords as to how the boys reached the creek, and he stated they crossed Mr. Phillips' pasture and climbed through two right of way fences; that there was nothing to prevent them from going through the fences; that they were built "just so you could get through it." The evidence shows that defendant's right of way was enclosed by a fence on each side thereof, but fails to show the kind of fences they were or of what material they were constructed. However, there was evidence to the effect that the west fence was sufficient in construction to prevent the cattle and hogs of Mr. Turley who farmed the land west of the right of way, from going through on to the right of way. As regards the condition of the fence on the east side, the only testimony of importance relative to it was that of Mr. Phillips, living near and on east of the right of way. His testimony was that on being notified by the Wilkerson boy he went immediately to the scene of the drowning and that he went through the fence "pretty easily" but he never noticed its condition. Mr. Turley who farmed land on both sides of the culvert testified he was there on the day the boy was drowned, but that he did not notice the east fence as to its condition.

Plaintiff Morris A. Williams testified the fence on the west side was low, about two and one-half feet high, and ran up to the abutment of the culvert; and that it had been repaired within the year immediately preceding the trial of the cause. This witness also testified that between the northern end of the abutment and the first post of the west fence, there was no fence but a hole existed where one could pass through. As to this, Mr. Turley testified there was room enough for a man to walk between the fence post and the abutment; but that his hogs had never gotten through this space because the creek ran into the fence before it got down that far. There is no evidence that the boys passed through this opening. Witness Phillips testified that part of the west fence was down. There is testimony tending to show that the place where the boy was drowned was east of defendant's west fence as then constructed.

There are but two assignments of error, to-wit, (2) that the court erred in directing the jury to find for defendant in instruction "A;" and (b) in holding that section 9948, Revised Statutes, 1919, which requires railroad companies to fence their rights of way, was intended only for the protection of animals. The petition shows plaintiffs largely base their right of recovery upon the "attractive nuisance" or what is commonly called the "turntable" doctrine. It is charged "a dangerous and attractive nuisance, attractive and dangerous to children" was created and maintained by defendant.

One of the leading cases in which the attractive nuisance rule is discussed is that of Peters v. Bowman, 47 P. 598, a case arising out of the drowning of a boy in an unguarded pond on private property, wherein the owner was held not liable. The court said:

"A turntable is not only a danger specially created by the act of the owner but it is a danger of a different kind to those which exist in the order of nature. A pond, although artificially created, is in no wise different from those natural ponds and streams which exist everywhere, and which involve the same dangers and present the same appearance and the same attractions to children. A turntable can be rendered absolutely safe, without destroying or materially impairing its usefulness, by simply locking it. A pond cannot be rendered inaccessible to boys by any ordinary means. Certainly no ordinary fence around the lot upon which a pond is situated would answer the purpose; and therefore, to make it safe, it must either be filled or drained, or, in other words, destroyed. But ponds are always useful and often necessary, and where they do not exist naturally must be created in order to store water for stock and domestic purposes, irrigation, etc. Are we to hold that every owner of a pond or reservoir is liable in damages for any child that comes uninvited upon his premises and happens to fall in the water and drown? If so, then upon the same principle must the owner of a fruit tree be held liable for the death or injury of a child who, attracted by the fruit, climbs into the branches and falls out. But this, we imagine, is an absurdity, for which no one would contend, and it proves that the rule of the turntable cases does not rest upon a principle so broad. . . ."

The same rule was applied in this State in the early case of Overholt v. Vieths, 93 Mo. 422, 6 S.W 74, wherein a boy was...