Summary
In Volz v. City of St. Louis, 326 Mo. 362, 32 S.W.2d 72 (1930), this Court stated in dicta that "we deem it advisable to say that it is the general rule that a boy six years of age cannot be guilty of contributory negligence."
Summary of this case from Lester v. SaylesOpinion
October 13, 1930.
1. APPELLATE JURISDICTION: City of St. Louis. The city of St. Louis is a political subdivision of this State, and therefore under the Constitution (Sec. 12, Art. 6) the Supreme Court is invested with jurisdiction of an appeal from an order granting the defendant a new trial in a suit against the city, though the amount in dispute is less than $7500.
2. NEGLIGENCE: Uninclosed Pond in Public Park: Ice: Drowned Child. The failure of the city to fence or otherwise inclose a natural pond in a public park, owned, controlled and maintained by the city for the pleasure, recreation and refreshment of the citizenry, is not actionable negligence, but to inclose the pond with a fence or other barrier of sufficient height to prevent access by children to ice upon the pond would destroy the symmetry and beauty of the park and defeat the purposes for which the park is by law established and maintained; and the city is not liable in damages to parents whose eleven-year-old son, with actual knowledge of the danger, was drowned in an attempt to rescue from drowning his six-year-old brother who had ventured upon the soft ice, covered with water, which broke under his weight. [Distinguishing Capp v. City of St. Louis, 251 Mo. 345, and Davoren v. Kansas City, 308 Mo. 513.]
3. ____: ____: Warning Signs: Proximate Cause. The failure of the city to place signs in proximity to natural ponds in a public park, advising and warning immature children that the ice, which broke under the weight of plaintiff's eleven-year-old son when he went upon it to rescue his six-year-old brother from drowning, was dangerous, was not the proximate cause of the son's death, where both boys were warned by another eleven-year-old companion and saw him break through the ice and knew that the water on the ice covered the soles of their shoes, and knew from these and other facts that the ice was dangerous and unsafe. Neither child was or could be guilty of contributory negligence, but the warning they thus received was equivalent to a warning from the posting of signs, for such warning signs could have given them no more knowledge of the danger than they thus possessed. Under such circumstances it cannot be held that the failure of the city to post warning signs was negligence.
4. ____: ____: Watchman: Proximate Cause. The failure of the city to provide a watchman at a natural pond in a public park, to warn children of tender years of the danger of walking upon soft and melting ice and of the likelihood of the ice breaking under their weight, even when the city knew that children were in the habit of going upon the ice to slide and skate, was not the proximate cause of the death of plaintiffs' immature boys who ventured upon the ice and were drowned when it broke under their weight, where they had actual warning of the danger and actual knowledge that to walk upon the ice was unsafe and dangerous. The duty of the city extended no further than to warn the boys of the danger, and warning was not necessary where they had actual knowledge.
Appeal from Circuit Court of City of St. Louis. — Hon. John W. Calhoun, Judge.
AFFIRMED AND REMANDED.
Harry Baer and Jesse T. Friday for appellants.
(1) Plaintiffs' instruction numbered 1 fairly and correctly states the law applicable to the case under the pleadings and the proof, and is favorable to the defendant, especially when read in connection with Instruction 4, given on behalf of defendant. (2) Plaintiffs' instruction numbered 3 fairly and correctly states the law applicable to the case under the pleadings and the proof. Owen v. Brockschmidt, 54 Mo. 289; Nagel v. Ry. Co., 75 Mo. 667; Dalton v. Refining Co., 188 Mo. App. 545; Hicks v. Simonsen, 270 S.W. 326; Polk v. Krenning, 2 S.W.2d 109. (3) Plaintiffs introduced sufficient evidence to warrant a submission of their case to the jury. Jensen v. Kansas City, 181 Mo. App. 359; Carey v. Kansas City, 187 Mo. 715; Capp v. St. Louis, 251 Mo. 345; Barnett v. Kansas City, 214 S.W. 240; Davoren v. Kansas City, 273 S.W. 404; Nation v. St. Joseph, 5 S.W.2d 1106. (4) The court erred in refusing to permit plaintiffs to introduce testimony upon their offer of proof to sustain plaintiffs' second assignment of negligence set forth in their second amended petition. Carey v. Kansas City, 187 Mo. 715; Barnett v. Kansas City, 214 S.W. 240.
Julius T. Muench and Richard S. Bull for respondent.
(1) A city is not negligent in permitting a natural pond to exist in a public park where it has in no way increased the attraction that such pond has for children nor enhanced its danger. Arnold v. St. Louis, 152 Mo. 173; Williams v. Railroad, 6 S.W.2d 48; Annotations, 40 A.L.R. 488, 36 A.L.R. 224; Toledo v. Cummings (Ohio 1929), 166 N.E. 897; Robbins v. Omaha, 160 N.W. 749; Peters v. Bowman, 115 Cal, 345; Harper v. Topeka, 92 Kan. 11, 51 L.R.A. (N.S.) 1032. (2) Children visiting public parks are in the position of invitees. Liability for their injury or death, on the part of the city, must rest on the city's superior knowledge of a hidden danger; there is no liability for the unsafe condition, on a warm day, of a thin layer of ice over a pond, as such condition was obvious and as apparent to children as to the city. 20 R.C.L. 96, sec. 85; 45 C.J. 837, 876, secs. 244, 306; Cash v. Sonken-Calamba Co. (Mo.), 17 S.W.2d 927. (3) There was no proof that the city knew of the dangerous condition of the ice, nor evidence of the length of time such condition had existed, so as to show constructive knowledge thereof. 45 C.J. 837, sec. 244, (4) Appellants cannot here complain, as they do under their third assignment of error and the fourth point of their brief, of alleged error against them at the trial. All they may have reviewed is the action of the trial court in sustaining the motion for new trial. 4 C.J. 670; Roney v. Organ, 176 Mo. App. 234; Panagos v. Gen. Cigar Co., 268 S.W. 644; Story v. August, 10 S.W.2d 966.
This is an action by the surviving parents of one Leslie Volz, a minor, to recover damages from the city of St. Louis, due to its alleged negligence, for the death, on February 15, 1925, of said minor, then aged eleven years, by drowning in a pond or pool of water in Carondelct Park, an open and public park of said city. The plaintiffs' petition prayed damages in the sum of $10,000. Tried to a jury, a verdict in the sum of $5,244.50 was returned. The defendant, city of St. Louis, in due time filed a motion for a new trial, which the trial court sustained on the grounds that the court erred in giving to the jury erroneous, misleading and prejudicial instructions offered on behalf of plaintiffs, and in refusing to sustain a demurrer to the evidence offered by defendant. Plaintiffs appealed from the order of the trial court sustaining defendant's motion for a new trial, and now ask this court to order the verdict of the jury and the judgment reinstated.
Even though the amount in dispute is less than the amount required to invest this court with jurisdiction (Williams v. Railroad, 233 Mo. 666, 136 S.W. 304), nevertheless the defendant, city of St. Louis, is a political subdivision of the State within the meaning of Section 12, Article VI, of the Constitution, and thus we are invested with appellate jurisdiction (Steffen v. St. Louis, 135 Mo. 44, 36 S.W. 31).
The defendant neither introduced nor offered evidence in its behalf, but relied upon the insufficiency of plaintiffs' evidence to make a case. The evidence submitted in behalf of plaintiffs warrants the finding that, on February 15, 1925, about three-thirty o'clock in the afternoon, in Carondelet Park, a public park owned, maintained and operated by defendant, Leslie Volz, a minor, aged eleven years, the son of plaintiffs, was drowned in a pond or pool of said park, which was then covered with ice, on which about three-eighths of an inch of water had accumulated, while attempting to rescue a younger brother, Herbert, six years of age, who was in peril. February 15, 1925, was Sunday. The day was warm and people were about without overcoats.
Leslie, Herbert and their brother, Elmer, aged nine years, together with a companion, Ralph Walters, aged eleven years, after telling their father that they intended to take a walk in the woods near home, left home around one-fifteen P.M., and later wandered to Carondelet Park about twenty blocks distant. After traversing hills and valleys in said park, and viewing ponds that were exposed to the sun, on which the ice had become slushy, the boys came to the pond in which Leslie was drowned. The pond was natural and had formed in what is known as a sink in the ground and resulted from the accumulations of surface waters. The ground on all sides sloped to the center and it was shaded more or less from the rays of the sun. It was about 100 feet in length and forty feet in width, and lay about 150 feet from and ten feet or more below the nearest park driveway. At the place where Leslie's body was found the pond was about six feet deep. As the boys approached the pond, the ice appeared somewhat more firm than on the other ponds, due, it may be inferred, to its shaded position, and yet the boys saw that water had accumulated on the ice sufficient to cover the soles of their shoes. The pond was not enclosed by a fence or otherwise, nor were signs or a watchman provided. Boys often had been observed fishing in the ponds or sink holes and playing around with little boats.
On arriving at the pond, all of the boys went upon the ice. Ralph Walters' foot went through when he was about two feet from the shore, and going back to shore he advised them of the occurrence, but they proceeded further upon the ice. He said he told them that it was not safe. It was five or six minutes after his foot broke through the ice before Herbert broke through. After breaking through the ice, he called to them and told them it was not safe. He knew it was dangerous, and he told the other boys he thought it was dangerous.
The evidence shows that, about five or six minutes after Ralph's foot broke through, Herbert Volz, six years of age, decided to venture on the ice to reach a two-by-four protruding stick to ascertain if it was tight in the ice. As he neared it, the ice broke, and his brother Elmer, nine years of age, went to his aid, but as he came within about two feet of Herbert, the ice broke under him. He called to his brother Leslie, and Leslie, in attempting to reach them, broke through the ice, sank in the water and drowned. Herbert clung to the two-by-four stick and was rescued by a Mr. Reid, who jumped in the water and saved the boy. Elmer supported himself on a cake of ice and was rescued from the water by Dr. Baehr, who approached as Reid came out of the water with Herbert.
Elmer Volz testified that the observed that the ice on the other ponds had melted. When they arrived at this particular pond, the ice appeared to be pretty solid, although some water was on the surface, about three-eighths of an inch. He observed Ralph Walters step on the ice and the ice break, whereupon Ralph returned. It was after that that Herbert proceeded to the other side of the pond to go to the two-by-four stick protruding above the ice.
The evidence shows that this action was filed on May 6, 1925, and a writ was issued by the circuit clerk. Defendant admitted that the city of St. Louis owned, controlled, operated and managed Carondelet Park, on February 15, 1925, and that Leslie Volz came to his death on said day as the result of drowning in said park. The city also admitted the serving of a written notice in compliance with the statute on the mayor. Other facts, if any, pertinent to the issues, will be adverted to in the opinion.
I. Municipalities are responsible for their failure to exercise ordinary care to maintain public parks in a Actionable reasonably safe condition as to children attracted Negligence: there. That is, the municipality is responsible Child: for negligence. Plaintiffs' theory of recovery was Drowning in that the city of St. Louis was negligent in Pond in Park. maintaining or permitting the existence of a pond in Carondelet Park without providing a fence, rail or guard around the water so as to prevent children of tender years from going upon the ice.
Public parks in cities are constructed and established for the pleasure and recreation of the citizenry at large, and the normal citizen is entitled to have the park maintained to that end. To keep a child of an age permitted by its parents to wander unattended or to wander accompanied by other immature children from going upon the ice or into the water would require a fence or barrier of such height and inaccessibility as to destroy the symmetry and beauty of the scenery to which the citizenry is entitled. The propensity of youth to dare where the danger is not seemingly impending is well known. Ordinary fences and barriers are scaled by boys notwithstanding. It would be impracticable for the city to place fences or barriers around every object or place, possibly or imaginably dangerous to youth. It may be that a pond or pool is potentially dangerous, but so a tree may be or a terrace or dry land. Parks are maintained for the recreation and refreshment of the public, and water and ponds in parks divert and refresh people. If unsightly fences and barriers are erected around waters, and any of them probably would be unsightly, the symmetry of the landscape would be marred and the recreation and refreshment of the people lessened. If it is negligence to fail to place barriers around ponds or waters into which a youth may fall and drown, why is it not negligence to fail to erect barriers to prevent children from climbing trees from which they may fall to their injury or death, or to fail to place barriers around a thorny bush or shrub against which youth may prick their flesh and thus possibly develop an infection causing death? Such precautions would not only be impracticable, but would mar the symmetry of the landscape of the park and impair recreation. The negligible danger arising from youth drowning in ponds without barriers in public parks must be subordinated to the pleasure and recreation of the people as a whole. We do not think that a city is necessarily negligent because it fails to place a fence or barrier around a pond, either natural or artificial, in a public park, although situations may arise that develop negligence. [See 40 A.L.R. 488; 36 A.L.R. 224.] The cases of Capp v. City of St. Louis, 251 Mo. 345, 158 S.W. 616, 46 L.R.A. (N.S.) 731, Ann. Cas. 1915C, 245, and Davoren v. Kansas City, 308 Mo. 513, 273 S.W. 401, 40 A.L.R. 473, are not in point. The Capp case is based on the maintenance of a hole in the nature of an entrapment in a shallow stream in which children were accustomed to wade. The Davoren case is based on the creation and maintenance of a nuisance by the city. Be the determinations in those cases as they may, we do not think that the failure to place a fence or barrier around the pond in question constituted negligence. The drowning did not result from an unusual or hidden danger, for conditions were known to the boys.
II. It may be that under some circumstances a city would be negligent in failing to place signs in proximity to the ponds advising and warning immature children that the Warning condition of the ice rendered it dangerous. In passing, Signs. we deem it advisable to say that it is the general rule that a boy, six to say that it is the general rule that a boy, six years of age, cannot be guilty of contributory negligence (20 R.C.L. 127, sec. 106), and it follows that Leslie Volz, in attempting to aid his brothers in their predicament, was not guilty of such. But the boys were aware that the ice was dangerous and unsafe, for they were so warned by Ralph Walters, so the evidence shows. Moreover, Elmer Volz observed Ralph break through the ice and the boys knew that the water on the ice covered the soles of their shoes. The warning they thus received was tantamount to a warning resulting from the posting of signs. It results that the failure of the city to place signs in proximity to the pond, as a warning that the ice was dangerous, was not the proximate cause of Leslie's death, for warning signs could not have given the boys more knowledge than they had of the conditions confronting them.
III. Plaintiffs petition avers that defendant negligently failed to provide a watchman to warn children of tender years of the danger incident to walking upon the ice, and of Watchman. the depth of the pond and of the likelihood of the ice breaking, when defendant knew, or by the exercise of ordinary care could have known, that children were in the habit of going upon the ice to slide. Plaintiffs offered to prove, in support of the averment, that the city failed to provide a watchman on the day in question to warn children from the pond or to advise them of the danger of playing around the pond or going upon the ice on said pond or about the depth of the water in said pond, but the court on objection refused to permit plaintiffs to make the proof and rejected the offer of proof.
What we have said in the paragraph immediately preceding is applicable to this contention. A warning in regard to the condition of the ice would not have imbued them with greater knowledge than they had. The boys knew or were presumed to know that if the ice broke they would fall into the water, and that in water people drown. The drowning of Leslie was not the result of a lack of knowledge of the action of water, or the lack of knowledge of the dangerous condition of the ice. Certainly, the dire result was not expected, but the boys knew that the ice was melting and unsafe, and that people drown in water. It may be that a watchman, if there and advised of their intention, by threats and force, could have prevented them from going upon the ice, but the duty of the city extended no further than to warn the boys of the danger, and they had knowledge of that. We do not think that the failure to provide a watchman to warn them of the danger was the proximate cause of the drowning.
The order of the trial court sustaining the motion for a new trial is affirmed, and the cause is remanded. Davis and Cooley, CC., concur.
The foregoing opinion by DAVIS, C., is adopted as the opinion of the court. Blair, P.J., and White, J., concur; Walker, J., absent.