*1 Appel City Marshall, al., Respondents, et J. Brown Jesse (2d) 856. lant. 5'87 *2 Clay & Rogers, Davis, Mosman, Rogers G. Lionel and Louis Buzará respondent. N. for Wolf James, <& Bagby Harris, Jr., appellant.
James M.R. and H. H. for CAMPBELL, LeBoy Brown, years old, James was killed C. fall earth, part ledge a overhanging frozen a of the in the north bank of a pit parents, plain- sand located in the defendant His brought herein, damages his-death, tiffs this recover suit to for ob- a in $5000, tained the sum of from the defendant has, appealed.
The north bank of the was pit high sand twelve feet and about its overhang day January two to four feet. accident, the fatal .On 1931, 25, plaintiffs’ playing said son fourteen and other children were in the One them “We playing testified: were like we had treas- digging uries —we were pit putting down in the floor the sand and covering down in upthat plaintiffs’ cans there and them “was him; down on the floor and bank in caved and fell on’’ that part ledge Continuously Avhich was top fell bank: for many years plaintiffs’ pit before sand son killed the ground many scouts, public teachers, for children. Girl school school many pit children others assembled in for recreation. There was no evidence playground that the sand was not a for chil- safe until Cahill working direction, dren Walter and men his within under prior accident, week to the removed sand from the'bank and ’thus overhanging ledge. caused the
At requested the close of evidence jury court to instruct to return verdict 'its favor. The refusing refused. The insists that erred prove the instruction for the reason that failed to the con- alleged negligence. nection the defendant with the Of course, evi- were not entitled recover unless the tends that condi- dence to show the defendant created tion. defendant, Hineher, employee
Clarence an “somewhéré years,” twenty about testified he worked for the defendant that January, piled public it on streets 1931, hauled sand from the city; Walter worked under direction5 of that he Cahill, commissioner, and Walter Cahill > the- trial. The
was street commissioner defendant at time evidence further that a sard was used part shows +1 January city; during preceding streets pit, . removed sand from “working fines prisoners out” woi north bank defendant’s street under direction o. in-causing prisoners Cahill, plaintiff that Walter contends Section provisions work, performing his for prisoners Revised Statutes that the commis- a street -.Said it is section days for “to out the full number prisoners sioner to cause breaking ... they other at rock have been sentenced . . .” designated. city may . public work . . as commissioner, absence The defendant the street work nor cause place designate the ordinance, could requires mandatorily self-executing, prisoners to work. The statute is cause marshal, public officerto or other street commissioner *3 Clearly designated.” the section may public work “as be to work on causing prisoners to charged of with the officer work. But designate place of authority having to work'is one re- statute the construction defendant’s adopt we to that the evidence the reason thereby,,for affected would be sult not regular by was caused dangerous condition was that of the defendant’s city the direction employees The defendant that it was “not sufficient to show that some employee of merely the city created a condition. It must shown that be it was done under authority proper some created by ’’ .authority of city The by was authorized its charter pur to sand, chase the remove it from the use it argument streets. Hence, the that it must be shown that authority by was done under authority some proper created city distinguish doing “fails to between the act in its nature un lawful, prohibited, doing authorized, an act in its nature place, at an unauthorized or in an unlawful manner.” [City Boon 339; Stevens, Roy City, App. v. 238 204 Mo. 332; ville Mo. v. Kansas 2 Connelly City Sedalia, (2d) 632; v. City W. Foncannon v. S. Kirksville, 88 App. Mo. 279.] plaintiffs complain
Were within the scope not corporate powers, case would come within the Kennedy City Sedalia, v. in the case of 281 S. rule enunciated W. governed by principle of this is an- determination case The City, 308 v. Kansas Mo. 273 in the case of Davoren nounced 401, in case the evidence was that constructed W. a deep pond upon a creek which caused to form across an embankment private property. The drowned while ing npon holding ice of the In pond. liable déath city for the ‘‘ obligation npon the child the legal court said: The who rests all create or allow such dangerous precau- to reasonable conditions use tions unnecessary others, to see that flow injury no shall therefrom to and, if results, party is injury, violated and the guilty will in damages.” held liable may judicial
It harmony be there is lack of Davoren case upon and the relies, cases which the Davoren case but the controlling. decided in banc and is The fact that did not show that the sand prop- was the erty of defendant was immaterial for the reason one who creates- a nuisance, not, whether own property on his is liable for the dam- age thereby.. C. J. caused [46 741.] ’ The defendant further contends that 'upon case based the “turntable” think petition doctrine. We do not so. Plaintiffs’ legally petition the same as the case. Davoren The court correctly v. City ruled the to direct verdict. In- [Dutton dependence, (2d) 161; Aug. certiorari denied 18. 1932.] The complains permitting action the court testify danger witness to called the of Cahill to the he attention inhering in the bank The evidence was admitted for express showing purpose proper. notice This was City, 136 Mo. of Kansas [Donahew 670.] Moreover, overhanging ledge, it must be borne mind that though obviously dangerous years, was a to one of mature hidden years age. danger ehild Reversible does not appear error G., sitting. Reynolds, the record. *4 Campbell. foregoing opinion PER is C., CURIAM: The All opinion adopted as the of the court. concur. Kasper Appellant.
Arley J. Respondent, Ebert, v. A. Company, (2d) 71 W. 30, 1934.