Davoren v. Kansas City , 308 Mo. 513 ( 1925 )

Plaintiffs, in this action, sue for damages occasioned to them by the death of one of two twin boys, aged six years and seven months, when both were drowned in a pond on March 8, 1920.

In the afternoon of that day the two boys, Karl and Kenneth, came home from school in the afternoon about 3:15 or 3:30 o'clock, and after changing clothes left and were next seen upon a pond just south of Twenty-first Street and between Bales Avenue and Askew Street. There was an inch or more of ice upon the pond, and the boys were seen playing with a bottle upon the surface of the ice — one running after the other. Near the deeper portion of the pond the ice gave way and the child in front sank under, immediately followed by his brother. Their pictures are in the record, and it is easily discernible that they were both bright little fellows, as the evidence tends to prove. The present action is for the death of Karl E. Davoren. From the evidence Twenty-first Street runs east and west, and Bales Avenue and Askew Street run north and south, intersecting and crossing Twenty-first Street. There was no intervening street between Bales Avenue and Askew Street. They, as well as Twenty-first Street, are public highways in Kansas City, Missouri. The negligence is thus charged in the petition:

"That on the 8th day of March, 1920, about 3:45 o'clock P.M. said Karl E. Davoren was playing upon the ice upon a pond of water located on the south side of Twenty-first Street between Bales Avenue and Askew Street in Kansas City, Missouri, same being the only pond on the south side of said street between Bales and Askew. That the ice upon said pond broke and allowed said Karl E. Davoren to fall through the ice into the water of said pond, as a direct result of which he was then and there drowned and came to his death.

"The said pond was created and caused directly by the damming up and accumulation of surface water directly caused by the negligence of the defendant in constructing and maintaining a high grade and fill on Twenty-first Street at this place, and in failing to provide and maintain a sufficient culvert or other outlet therein to allow said surface water to escape; that said pond constituted a nuisance and created a condition attractive to children and dangerous to children and others, and that the defendant knew or by the exercise of ordinary care should have known all of said facts, circumstances and conditions in time so that by the exercise of ordinary care said conditions could have been averted, rectified and remedied and the death of said child averted."

Damages were sought in the sum of $10,000. The answer was a general denial. Plaintiffs had a verdict for $10,000, and from the judgment entered upon such verdict defendant has appealed. It appears that about twenty years ago Kansas City improved Twenty-first Street, and in doing so constructed or made a fill some twenty feet high for a distance of 150 feet, between Bales Avenue and Askew Street. There was a gulch or ravine coming in from the south, and the topography of the lands south of Twenty-first Street was such that the water accumulated and formed a lake of considerable dimensions, and in the deeper portions (near this embankment upon which the traffic way and sidewalks on Twenty-first Street were constructed) the water was twelve to fifteen feet deep. It stands admitted in the record that the whole of this lake was upon private property, and no portion thereof in the street, or upon city property. Details will be left to the opinion.

I. In this case the evidence in the bill of exceptions is printed in full, giving both questions and answers. In other words, the evidence is not given in narrative form.Abstract, Motion was filed by respondents to dismiss the appeal for this reason. The motion to dismiss was overruled before the argument of the cause, and for reasons which we afterward expressed in Frohman v. Lowenstein, 303 Mo. 339, when such case was determined by Court in Banc.

II. It is hard to eliminate from the mind the bright faces of those two little boys, and the writing of the cold law of this case is thereby rendered no easy task. AppellantsTurn-table contend that the theory of the petition puts the caseDoctrine. within the "turn-table cases" rule. Respondent denies this, in the face of the instruction which required the jury to find every element of the so-called turn-table doctrine. The allegation in the petition we have set out in the statement, but we quote the earmarking clause here, thus: "that said pond constituted a nuisance and created a conditionattractive to children and dangerous to children and others, and that defendant knew," etc.

The instruction requires the jury to find the foregoing pleaded fact, so that both by pleading and instruction, this trial proceeded upon the turn-table case theory. At the expense of brevity, we set out the instruction:

"If you believe and find from the evidence that on the 8th day of March, 1920, about 3:45 o'clock P.M., Karl E. Davoren was playing upon the ice on a pond of water located on the south side of Twenty-first Street between Bales Avenue and Askew Street in Kansas City, Missouri; and that the ice on said pond broke and allowed said Karl E. Davoren to fall through the ice into the water of said pond, and that as a direct result thereof he came to his death by drowning; and if you further find that there was a high fill on Twenty-first Street at said place; and that the defendant city constructed and maintained said fill without providing an outlet therein reasonably sufficient to allow surface water to escape, and that the defendant city was thereby guilty of negligence (if you so find); and that said pond was directly caused by the damming-up and accumulation ofsurface water by said fill (if you so find); and if youfurther find that said pond created a condition attractive anddangerous to children, and that the defendant city knew, or bythe exercise of ordinary care should have known, all of thefacts, circumstances and conditions herein submitted, relating to said fill and to said pond and the danger thereof (if you so find) in time so that by the exercise of ordinary care said dangerous condition (if you so find) could have been averted, rectified and remedied by providing a reasonably sufficient outlet in said fill to allow surface water to escape; and that the death of said Karl E. Davoren would thereby have been averted; and if you further find that Karl E. Davoren was at and before the time of his death an unmarried minor; that plaintiffs were at the time of said death, and are now, husband and wife, and the father and mother respectively of said Karl E. Davoren, and as such had the custody of said minor child; and if you further find that the death of said child directly resulted from negligence of the defendant city as herein submitted (if you find the defendant city was negligent as herein submitted), and that plaintiffs have sustained damages as a direct result of the death of their said son, then you are instructed by the court that you should return a verdict in favor of the plaintiffs and against the defendant."

We have italicized several pertinent facts in this instruction, (1) the portion pertaining to surface water, which will be material upon another point, and (2) that part which expressly submits the turn-table doctrine. The turn-table cases proceed upon the theory that it is negligence to maintain (unguarded, unprotected and insecure) a turn-table or similar instrumentalities which are attractive to children of tender years, and immature minds. The petition in this case pleads the maintenance of "a condition attractive to children," and asks relief as in the turn-table cases. The instruction covers the same matter, thus showing that the pleader, by instruction, gave that construction to his own pleadings. In this situation it cannot be urged that this portion of the petition is surplusage. Each and every allegation of the petition was submitted by the instruction. The petition charged that this "condition," "attractive to children," was created and maintained by the defendant. Whatever may have been the intent of the pleader, his language was unfortunate, and we have a case where there is an attempt to recover upon the turn-table-case doctrine. The instruction given construes the pleading. But it is urged that there could be no turn-table doctrine in the case, because the "condition attractive to children" was not upon the city's property. There is language in Williams v. Gas and Electric Co., 187 S.W. l.c. 557 (Springfield Court of Appeals), which lends support to this idea. When that case reached this court (274 Mo. 1) there was no approval of that language used by the Court of Appeals. While the cases involving the doctrine usually are cases where the inhibited structure is upon the premises of the defendant, yet it by no means follows that an inhibited structure might not be wrongfully erected and maintained by defendant upon the premises of another, and without leave or license from such other, and the turn-table rule would apply. A turn-table itself might be placed upon property not owned by defendant, and without leave or license from the owner of the premises. The pleadings and the instructions in the instant case show a clear attempt to make a case under the turn-table doctrine. The facts do not bring it within the rule, and the demurrer to the evidence should have been sustained. [Overholt v. Vieths, 93 Mo. 422; Arnold v. City of St. Louis,152 Mo. 173; Moran v. Pullman Car Co., 134 Mo. 641; Kelly v. Benas,217 Mo. 1; Buddy v. Union Terminal Ry. Co., 276 Mo. 276; State ex rel. v. Ellison, 281 Mo. 667; Rallo v. Construction Co.,291 Mo. 221.]

This court has persistently refused to extend this doctrine of negligence. [Kelly v. Benas, 217 Mo. l.c. 13; State ex rel. v. Ellison, 281 Mo. l.c. 680 et seq.]

In no instance have we ruled facts such as we have here to be within the rule. There are, however, other features in this case which preclude recovery. Of these next.

III. As indicated in our statement there was a draw such as would gather the surface water and cast it upon Twenty-first Street on its way northward. The respondents'Surface Water: learned counsel concede the water to be surfaceNegligence. water, in the instruction set out above. The topography of the country was such that from several directions the surface water ran to this lower portion of the land (draw) and was cast upon and across Twenty-first Street. It was by pleadings, evidence and instructions, treated and accepted to be surface water. The alleged negligence of the city must be measured by its rights to both build and protect its streets. Surface water in Missouri is a common enemy and the landowner has the right to protect his property from its depredations, although in so doing the water may be cast upon the land of another. [Goll v. Railroad, 271 Mo. l.c. 667 et seq., and cases therein cited and discussed.]

In this case the city had such rights in Twenty-first Street, that it could construct it in such manner as to make a proper roadway, and make its embankment of such height as to protect it from surface water. In so doing it was guilty of no act of negligence. In changing the grade of its street, it became liable in damages to adjoining property owners, but such right to damages is not based upon negligence. There can be no negligence in doing what the city had the legal right to do. The damages in condemnation proceedings are based upon taking or damaging private property for public use, and not upon negligence.

The city in its fight against surface water and for the protection of its street had the legal right to raise the level of the property under its control, and having such legal right could not be guilty of negligence in doing the act. A legal right is a lawful thing. The city did not have to provide waterways through or over its property in the disposition of surface water. [See authorities, supra.] The Missouri rule as to surface waters is the common-law rule, and not the civil law rule, and for this reason we need not go beyond our own case law. The evidence in the case, under this rule of law, shows no negligence and hence no liability.

IV. Divers lines of cases are cited and elaborated upon by learned counsel upon both sides of the case. We shall not pursue their thoughts, when the solution of the case is onePonds on of such simple application of firmly fixed rules.Private Running through it all is the legal right of the cityProperty. (under our rulings) to construct a solid embankment on its road way, and therefore there was no negligence in so constructing and maintaining it. Then viewing it from another angle, and supposing that the owners of the lands south of Twenty-first Street where this pond was made, had themselves built such an embankment and made this pond on their own land, just as it is now, except the embankment would have been constructed further to the south rather than upon the roadway of the city, would the landowners be liable? Most certainly not under the cases cited under our Point II, supra. If the city paid the assessed damages to, or became liable for damages to these property owners for damaging their property by raising the natural grade of the street, it (in a sense) paid for the privilege of constructing a pond of surface water on this private property, and would be no more liable than the private owners for the maintenance of the pond.

Suppose the city in its private business or proprietary capacity owned a lot or tract of ground within the city, and for some lawful purpose and use built a pond thereupon, would it be liable for children who might be submerged therein? We think not. In such capacity the city (although a corporate body) would stand before the law just as an individual. It might need a pond to run a municipal light or water plant, or some other things, not done in a governmental capacity. The maintenance of a pond of water upon private property has not been declared negligence in Missouri. It must not be overlooked that this pond was not in a street, or upon city property. So that we can see no theory upon which the recovery in this case can be permitted to stand, much as we would like to see the parents compensated for the loss of these two bright little fellows. The judgment should be simply reversed. I file the foregoing opinion written by me for Division One as my dissent in Court in Banc. Atwood, J., concurs in the result of these views.