181 Mo. App. 359 | Mo. Ct. App. | 1914
Plaintiffs are the parents of deceased Samuel Jensen a child five years old who was drowned in a fountain just south of the intersection of ninth street with the Paseo in Kansas City, and this action is brought by them on the ground of the alleged
The fountain basin was about circular and was near forty feet in diameter. The outer wall was of heavy stone and on the north and largely to the east and west was between twenty-four and twenty-seven inches in height above the stone flagging surrounding it. On the inside the basin sloped downward toward the center where the water was thrown upward in more or less spray effect when the fountain was in action. At the edge next to the inside of the outer wall, the water was about five inches deep, but at the center, on account of the slope, it came to a depth of more than three feet. The top stone of this surrounding wall was perhaps eighteen inches in width and while it afforded a seat for adults, it also was used by children of different ages in walking or running around the fountain in play. The Paseo was a wide space with the fountain and ornamental work, as well as grass and flowers, in the center and a street or boulevard on either side. On the whole, the immediate vicinity and the fountain itself, in its surroundings, was attractive to children and they played there in numbers; it being common to see little ones as young as three to four years and upwards about the fountain and running around the top of the wall. The deceased child was last seen on- the wall running around the top. He was found drowned, his body being in the deep water near the fountain proper. No one saw him fall in and it is not known just the time he did, but he had not been absent from home, near six blocks away, much more than an hour when his mother was told of his death.
In these circumstances the city contends there was no evidence of negligence and that it should have been so declared as a matter of law. While the plaintiff insists it was a question for the jury. After full consideration we have adopted the plaintiff’s view. We are
In the latter case, it was held that children playing in parks were not trespassers and the court said, in effect, that they were the invitees of the city. There a child, with a companion, was wading in a pool, shallow at the edge, but several feet deep towards the center, and practically unguarded. The question of the city’s negligence was held to be for the jury.
In this case the low wall, or balustrade, twenty-five inches high, was the only guard, and it, of course, was no protection, once a child was on top of it, against the water in the basin of the fountain. The wide coping which topped this wall was a great temptation to children to run around it. We think it too extreme to say, as was suggested in argument, that a boy five years old, could not climb onto the top of a wall of
There is the further insistence that these plaintiffs, as parents of the boy, were guilty of negligence in letting so small a child go upon the streets unattended. While in this State, the negligence of the parent cannot be imputed to the child in the latter’s action (Neff v. City of Cameron, 213 Mo. 350; Berry v. Railroad, 214 Mo. 593; Sluder v. Transit Co., 189 Mo. 107, 139 ; Profit v. Railroad, 91 Mo. App. 369) it will, of course, bar their own action. We have gone over the evidence as preserved in the record and have concluded that plaintiff’s negligence was not made out in such indisputable way as to justify us in saying it should have been declared as a matter of law.
Plaintiffs were shown to be hardworking people. The father was absent at his daily work. They lived in the rear of their house and let rooms to others. She had been washing the day of the child’s death. There was evidence tending to show she had the mother’s anxiety and solicitude about her child. She endeavored to keep an oversight of him and there is nothing to show that either she or the father, knew or consented to his going about the fountain. As well expressed by different witnesses, “She did the best she could.”
There was a small back yard to the premises where the boy played. It was fenced, though there was an opening without a gate. The mother saw him there within an hour of the time word was brought to her. In our opinion the evidence in defendant’s behalf on this part of the case, considered alone, was not convincing. ' At any rate, the trial court was abundantly justified in submitting the matter to the jury. [Capp v. St. Louis, supra; Birkett v. Ice Co., 110 N. Y. 504; Kuntz v. City of Troy, 104 N. Y. 344; Fox v. Street Ry., 118 Cal. 55.] The impression left by the evidence
We are without authority to interfere and tbe judgment is affirmed.