100 Neb. 439 | Neb. | 1916
Lead Opinion
Plaintiff, as administrator of the estate of Francis D.' Robbins, deceased, filed his petition in the district court for Douglas county, which, omitting the formal parts, alleged : That the city of Omaha is a metropolitan city having a population of more than 100,000; that it has no park commissioners, nor any special parks reserved by the state under any special acts of the legislature, but that
To this petition the defendant city demurred, “for the reason that said petition does not state facts sufficient to constitute a cause of action against the defendant.” The demurrer was sustained; plaintiff elected to stand on his petition; the cause of action was dismissed, and plaintiff has appealed.
The city claims that, in maintaining this park and pool, it was engaged in a purely governmental service, and that no liability could attach; hut we do not deem it essential to a decision of this case to determine that point. The petition alleges that this artificial pond was in a remote part of the park, was out of the usual route of travel, and that it was maintained for profit. But it appears from subsequent allegations of the petition that it was used merely to operate a hydraulic ram to flush water for toilets for the convenience of the employees engaged in the park department. It is clear that it was not maintained for commercial purposes.
It is argued that, because the pond was 6 feet deep, was unguarded, had a raft thereon, and a child might fall therein and he drowned, it is a nuisance, while it is admitted that a shallow body of water which a child might wade across would not be a nuisance. We do not care to fix the depth at which water may he maintained in lakes formed and maintained in public narks. If this is to be done, it ought to be done by legislative enactment. It is a question that falls naturally to the legislative department of the government, and not to the judicial. A lake in a park, whether artificially formed or not, is not of itself a nuisance. Parks are maintained for the benefit of the public, and a pond or lake adds to the beauty of
Affirmed.
Dissenting Opinion
dissenting.
In my opinion the only ground on which the city can legally escape liability for damages under the facts stated by plaintiff is that it.performed a governmental function in maintaining the park. I therefore dissent from the ruling that, without regard to the capacity-in which the city exercised its powers, actionable negligence is not pleaded. The child was not a trespasser, but was in the park by invitation, express or implied. If the city is a property owner answerable for negligence, it is governed by the following rule of law:
“The owner or occupier of real property is under the duty of exercising reasonable or ordinary care and pru*443 dence to the end of keeping his premises safe for the benefit of those who come upon them by his invitation, express or implied; and if, through a neglect of this duty, they are, without negligence or fault of their own, injured by reason of any negligent defect therein, he must pay damages.” 1 Thompson, Negligence, sec. 968. Tucker v. Draper, 62 Neb. 66.
A child on the premises by invitation is not a trespasser, and it is unnecessary in such a case to show that the pond was an attractive nuisance. City of Omaha v. Richards, 49 Neb. 244.
If a city in establishing and maintaining parks does not act in a governmental capacity relieving it from liability for negligence, it is answerable according to the following doctrine:
“The maintenance of a public park in a populous city is not only an implied but an express invitation to the public to resort to it for amusement and recreation, and, where children of tender years and immature minds are invited to play and amuse themselves, the parents have a right to rely on the city to exercise reasonable or ordinary care to keep the park and water-works system safe for the benefit of those who come there by such express invitation.”
“The city owed to adults and children alike the duty of exercising ordinary care to avoid injuring them anywhere within the boundaries of the public park, and it cannot escape liability for the death of this child by drawing a distinction between the duties the city owed to the invitees at different points or portions of the park. The view we take of the case is that the city owed to this child and its parents the duty to exercise ordinary care to avoid injuring him, no matter on which portion of the park the child might resort to for play.” City of Anadarko v. Swain, 42 Okla. 741.
Unless the city was performing a governmental function in maintaining the park, the petition states a cause of action.