24 N.W.2d 485 | S.D. | 1946
This is an action brought by John M. McCleod as special administrator against the Tri-State Milling Company to recover damages for the death of his son John, four years of age, who was drowned on June 4, 1943, in a canal maintained by the defendant.
There is no substantial conflict in the evidence. From the record, it appears that an ordinance known in the record as "Exhibit 1" was enacted in August, 1889, by the city council of Rapid City granting to the Rapid River Milling Company the right to excavate a canal across and along the streets therein named. It requires that the canal "be boxed in a good workmanlike and thorough manner" and that the company keep the "alleys and streets that said ditch or canal crosses or traverses in good condition so that travel or the use" of such alleys and streets be not impeded. It also provides that the company is "responsible for damages occasioned or caused by said ditch or canal" and if the company fails "to keep such ditch or canal in reasonable or proper repairs, after ten days written notice having been given to said company by the city council of the city of Rapid City," then the ordinance becomes null and void. The canal enters St. Louis street between Seventh and Eighth streets and extends through St. Louis street in an easterly direction to Fourth street. The portion of St. Louis street outside of that occupied by the canal is open to travel. The canal as originally constructed was covered throughout its length, but in a few years the timbers with which the canal was boxed decayed and the cover entirely disappeared. The defendant Tri-State Milling Company acquired the mill and plant of the Rapid River Milling Company in 1934 and shortly thereafter constructed along the banks of the canal a fence made of woven wire, 38 inches high, iron posts set in concrete and two strands of barbed wire above the woven wire.
The McCleod residence is on St. Louis street between *365 Sixth and Seventh streets, facing the south bank of the canal. There were three openings under the fence along the south bank, making it possible for children to crawl under the fence. No one saw the boy enter the enclosure, and the only evidence tending to show by what route he reached the canal is that of the mother who testified that a toy with which the boy was playing earlier in the day was found on the bank of the canal near one of the openings under the fence. There was evidence that small children were accustomed to play along the south fence to the knowledge of officers of the defendant company.
The allegations of negligence as set forth in the complaint upon which the case was tried are that "defendant, negligently and in violation of the ordinances of the City operated and maintained along and upon St. Louis Street in the City of Rapid City, South Dakota, between Sixth and Seventh Streets, an open and uncovered ditch or canal filled with deep water which the corporation then knew, or should have known was attractive and dangerous to children of tender years." Defendant answered admitting that plaintiff's son was drowned, but denied that the canal was negligently maintained or that the death of the child was caused by the negligence of the defendant. The jury returned a verdict in favor of the plaintiff for $4,250 and defendant whose motion for judgment notwithstanding the verdict or for a new trial was denied has appealed.
The main question for our consideration is whether a violation of this so-called ordinance creates a civil right of action in a party injured thereby. The trial court instructed the jury that if the jury should find from the evidence "that the defendant corporation violated City Ordinance No. 66 of the city of Rapid City, South Dakota, in that it failed to keep and maintain the ditch or canal in which the child John McCleod was drowned, covered and boxed as required by said ordinance, and that such violation directly and proximately caused said death, or was a direct and proximate contributing cause thereof," then its verdict should be in favor of plaintiff and that "this is so for the reason that any person who violates such a city ordinance is negligent as a matter of law, *366 if such violation causes or contributes to such accident or death." Defendant claims that if Exhibit 1 is an ordinance as distinguished from a mere permit or license by the city to a private corporation to occupy or use portions of public streets for the construction of a canal a violation thereof does not result in liability as stated by the court in its instruction.
[1-3] The question frequently arises in actions for negligence whether a liability may be predicated on the violation of a statute or ordinance, or as to whether the violation constitutes negligence as a matter of law, where such enactment may regulate the performance of an existing duty or where no common-law duty existed independent of the statute or ordinance. The rule as to the violation of a statutory duty as declared in this state is that if such violation is the proximate cause of an injury to a person for whose protection the statute was enacted it constitutes negligence as a matter of law unless under certain circumstances it is excusable or justifiable. Zeller v. Pikovsky,
[4-6] A municipal corporation is charged with the duty of keeping its streets and sidewalks in a reasonably safe condition. Bohl v. City of Dell Rapids,
[7, 8] The ordinance granted to the milling company permission to excavate and maintain the canal along and across streets and alleys of the city upon condition that the company keep such streets and alleys in repair. While the duty to keep streets in repair is imposed by law upon a city, it is the settled law that where a person in consideration of a license or other advantage agrees to perform a duty, such as the repair of a street used by it, he is liable to a person injured by reason of nonperformance. The general rule deducted from a number of decisions referred to in an annotation in Ann. Cas. 1913C, 217 is thus expressed: "A person required by contract, franchise, municipal ordinance, or statute to perform the duty resting on the municipality of keeping its streets in repair and safe for the passage of the public, is liable to a party injured by a defect in a street caused by the failure to perform such duty." To the same effect is the statement of the rule in the Restatement of the Law of Torts, § 288(c). This principle is ordinarily recognized and applied in cases where public service companies have assumed the duty of keeping in repair portions of the streets used by them in consideration of franchises granted. The duty is considered as having been imposed for the benefit of individuals comprising the public. We think that there can be no logical distinction drawn with respect to the nature of the duty imposed between such cases and the one under consideration. But counsel contend that there is no common-law duty of safe-guarding young children against injury, except to afford such protection as is contemplated within the ordinary obligation to keep streets in a reasonably safe condition and that the ordinance should not be construed in any event as requiring more than ordinary care and conferring a right of action against the defendant not enforceable against the city. It may be assumed that there was no common-law duty either on the part of the city *369
or the milling company, for the protection of young children, to cover the canal. The ordinance, however, established a standard of care to be used by the milling company in return for the privilege of using the streets and alleys and its validity is not questioned. If the company has assumed a possibly higher degree of care for the protection of persons and property than that existing under the common law, we see no reason why it should not be held to such standard of care. Metcalf v. Mellen,
Counsel for plaintiff contends that the facts of this case come within the attractive nuisance doctrine and that independently of the ordinance defendant was liable for the death of the child. The complaint alleges that the uncovered canal is dangerous and attractive to children of tender years and the court instructed the jury that if any one maintains on his premises something that is an attraction or an allurement to children of tender years, the law imposes upon him the duty to take reasonable precautions to prevent their intrusion.
[9] In Baxter v. Park,
The question as to the applicability of the doctrine of attractive nuisance to ponds and waterways was considered by this court in Morris v. City of Britton,
In Somerfield v. Land Power Co.,
Also, in McCabe v. American Woolen Co., 1 Cir., 124 F. 283, 287, the defendant company was held not liable for the death of a child who fell into an open canal and was drowned. The company maintained an unguarded canal with precipitous banks through the thickly settled portion of a town and near the home of the father of the child who was drowned. While recognizing the doctrine laid down by the Supreme Court in Sioux City Pacific R. Co. v. Stout, supra, the court said: "The case at the bar, however, is essentially distinct in this particular. This canal was permanent, open, and plain to view, as much so as though it had been a natural stream, and suggests nothing whatever which would change the relations of the parties from what they would have been had it been a brook or a river. If the defendant is to be holden to this plaintiff for not especially guarding it, then the customs of the community must be changed throughout, because it is impossible to *372 distinguish this canal for the purpose of this case, from a river or a brook, a haymow, an ox cart left in a farmer's yard, a high ledge, or a field trench, about either of which children may happen to be accustomed to play. We think, therefore, that this canal was an object of such a character that, both from the reason of the thing and the customs of the community, the defendant was entitled to asume that the plaintiff's natural guardians would protect him from any dangers attached thereto, as they easily could and ought to have done."
Emond v. Kimberly-Clark Co.,
To the same effect are the following decisions denying liability for death or injury to children by reason of open and unguarded canals, ponds and excavations. Stendal v. Boyd,
[10] Waters, whether natural or artificial stream, have an allurement for children, but this is not sufficient of itself to subject an owner to liability. We think the facts of this case did not justify the court submitting the case to the jury under the attractive nuisance doctrine. It would be extending the doctrine too far, as this court indicated in the Britton case, to hold that a natural or artificial stream is an attractive nuisance. We, however, do not determine whether the error in submitting the case to the jury on the theory of attractive nuisance was prejudicial in view of the conclusion reached on the effect of the violation of the ordinance. The judgment is reversed on another ground, but what we have said about the attractive nuisance doctrine will prevent a repetition of the error in the event of a retrial.
The court in substance instructed the jury that if they found that death of the child resulted because of the negligence of the defendant as alleged then plaintiff was entitled to recover such amount as "the jury may deem from the evidence is just and fair compensation, not exceeding the sum of ten thousand dollars," the maximum amount recoverable under the wrongful death statute. The court further instructed the jury as follows:
"Every parent has the right to expect and to anticipate that in his old age his or her child will, if necessary, contribute to his or her support; and it is the moral and legal duty of every child, whether a minor or an adult, to do so. *374 The probability and expectancy of contributions by the child to the parents may be inferred by the jury from such moral and legal duty and from the relationship.
"The measure of plaintiff's right to recover is the pecuniary damage which the parents have sustained. The jury in estimating the damages should not take into account or consider the sorrow, mental anguish or pain which the parents may have suffered by reason of the loss of their child. The damage is exclusively for a pecuniary loss. In measuring this it is not limited to the benefit received prior to the death, but it shall embrace all the probable or even possible pecuniary benefits which might accrue during the childs' life. Among these is the probable or possible direct benefits from earnings during the child's minority and also after the child would have reached his majority; and also the child's advice during life, and the prospect of inheriting from the child after death. It matters not whether the parents at the time of the child's death were dependent upon him for support, nor does it matter whether the child had ever contributed anything to the support of the parents."
[11-13] The statute (SDC 37.22) under which this action was brought, allowing damages for "pecuniary injury," contemplates recovery for those prospective advantages of a monetary nature which have been cut off by premature death. Tobin v. Bruce,
We therein expressly disapproved of the language quoted in Bottum v. Kamen, supra, from the New York case of Morris v. Metropolitan St. Ry. Co.,
In sustaining the court's refusal to give an instruction authorizing the jury to consider future advice and the prospects of inheritance, in Hodkinson v. Parker,
We conclude that the giving of this instruction was prejudicial error. The judgment appealed from is reversed.
All the Judges concur.
PUCKETT, Circuit Judge, sitting for POLLEY, J.