.

jected to disgrace, ridicule, or contempt by reason of the defendants' publishing of him that he had said in effect, referring to the calling of a council meeting, that he alone was managing the affairs of the city in that regard; colloquially that he was running the town and the council and the people had nothing to do about it.

cause a pool to form below the culvert, the floor of which, it is alleged, was higher than the natural bed of the stream. This pool, it was alleged, was in a populous part of the city, and for some time before the accident children had been attracted there and had been habitually wading and swimming in the pool. It is averred that it was a dangerous

(89 Kan. 547)

TAVIS et al. v. KANSAS CITY. (Supreme Court of Kansas. May 10, 1913.)

(Syllabus by the Court.)

NEGLIGENCE (§ 39*)—ATTRACTIVE NUISANCE.

Two boys of appellees were drowned in a pool of a creek immediately below a culvert which the city had constructed in a street and across the creek, and it was claimed that the opening in the culvert for the passage of water was too small, that in times of freshets the water in the creek was held back by the culvert and forced through the opening in such a way as to make a pool in the creek below the culvert, that the place was attractive to boys who frequently went to the pool to wade and swim, and that as it was unfenced and unguarded the city, under the attractive nuisance doctrine, was responsible for the drowning of the boys, and liable for the loss sustained by appellees. The land where the pool was formed was the property of a private owner and over it the city had no control, and it did not appear that any officer of the city knew of the existence of the pool. Held, that the case does not come within the attractive nuisance doctrine, and that the city is not liable for the loss. [Ed. Note. For other cases, see Negligence, Cent. Dig. § 55; Dec. Dig. § 39.*]

Appeal from District Court, Wyandotte County.

Action by James Tavis and others against the City of Kansas City. From a judgment for plaintiffs, defendant appeals. Reversed and remanded, with directions.

R. J. Higgins and W. H. McCamish, both of Kansas City, for appellant. J. O. Emerson, and David J. Smith, both of Kansas City, for appellees.

JOHNSTON, C. J. The two sons of appellees were drowned in a pool four feet deep in Jersey creek, a natural water course which runs through the city of Kansas City, and empties into the Missouri river. Where Jersey creek crosses Thirteenth street, the city had made a fill and had also built a culvert leaving an opening for the passage of water 70 feet long, 15 feet high, and 8 feet wide, and the pool was on the grounds of a private owner near the end of the culvert. In appellees' petition it was alleged that, because of the height of the fill and the smallness of the opening in the culvert, the flow in the stream was obstructed, so that in times of freshets the water was forced through the culvert in such a way as to

guarded, and that no notice warning children of the dangers of the pool had been posted or given. It was alleged that, because of the negligence of appellant, the children of appellees were lured to the pool, and that they lost their lives while wading and swimming in it. The verdict of the jury awarded damages to appellees in the sum of $5,000, and with the general verdict they returned answers to special questions as follows:

"(1) Q. Was Jersey creek a natural water course at the time of the death of plaintiffs' children? A. Yes.

"(2) Q. How deep was the water where the boys drowned? A. Four or five feet deep. "(3) Q. How long immediately prior to the drowning had the pool or pond continuously existed without change in depth of water at the place the boys went under? A. Do not know.

"(4) Q. Is the bed of Jersey creek subject to change, and, if so, at what times does it change as to depths? A. Yes; after heavy

rains.

"(5) Q. Was the bed of Jersey creek subject to changes in depth at and prior to the time the boys were drowned at the place of drowning? A. Yes.

"(6) Q. Had there been a heavy rain or freshet a short time before the date of the drowning, and, if so, about how many days? A. Yes; about eight or ten days.

"(7) Q. Was the bed of Jersey creek at the point in question, and the water therein, subject to change to such extent that at times prior to June 1, 1911, boys of the age of the deceased could pass the entire length of said pond by wading without getting beyond their depth? A. Do not know.

"(8) Q. Was said pond on public or private property? A. Private.

"(9) Q. Was there anything about the appearance of said pond or pool which could be observed from passing along the public streets of defendant city at any time prior to June 1, 1910, which indicated in any way the depth of said pool, and, if so, what was it and at what time? A. No.

"(10) Q. Did any of the officers of the defendant city prior to June 1, 1910, have any actual knowledge of the existence of said pool? A. Do not know."

"(12) Q. How high did the masonry of the culvert at the east end extend as compared with the surface of the traveled roadway over the culvert at Thirteenth street? A. Do not know.

"(13) Q. Were there any trees and brush

"(14) Q. If you answer the last question in the affirmative, state whether or not the trees and brush and the masonry obstructed the view of this pool from Thirteenth street? A. Yes.

"(15) Q. Was the culvert in question of sufficient size to carry off all water which might reasonably be expected to fall in the basin drained thereby? A. No.

"(16) Q. If your answer to the last question is in the negative, then state at what time or times prior to June 1, 1910, there was a failure in this respect. A. Eight or ten days prior.

"(17) Q. Was it practicable to fence said pool so as to prevent egress thereto through the bed of the stream? A. No."

It is not easy to understand the grounds upon which the city was held liable for damages in this case. The city did not own or control the ground where the pool existed, and it had no right to build fences or barriers around it. As the findings show there were trees and brush between the street and the pool, and people passing along the street could not observe the depth of the water in that part of the creek, and it does not appear that any officer of the city actually knew of the existence of the pool. If the faulty construction of the culvert by the city injuriously affected lands of owners, either above or below the culvert, such owners might have a right of action against the city, but the owner of the lot upon which the pool is situated is not complaining, and neither do the appellees make complaint against the proprietor, the only one who had a right to fence in the pool or build barriers around it. The appellees ask to have the attractive nuisance doctrine extended far enough to hold a party who does not own or control the land where the nuisance exists liable. The doctrine has no application to the city even if the form of the culvert indirectly operated to deepen the water in the stream below it. The rule of the attractive nuisance cases has been recognized and frequently applied in this state (Osborn v. Railway Co., 86 Kan. 440, 121 Pac. 364, and cases cited), but it is based on the negligence of the proprietor who fails to protect young children attracted to his premises by some dangerous thing or place artificially created there and where he should have anticipated that the children would be lured into the danger. It assumes that he has the control of the premises and the right and power to erect fences or guards thereon for the protection of children that will be attracted there. In this instance the city had neither ownership nor control of the dangerous place. If it had known of the danger, it had no right to enter on the premises and build a fence around the pool,

Idren it is clear that the so-called "turntable" doctrine cannot be extended to include a party so remotely connected with the accident and loss as is the appellant.

The case of Kansas City v. Siése, 71 Kan. 283, 80 Pac. 626, is referred to as a precedent sustaining the liability of the city in this case. While a recovery was had there for the loss of a child drowned while swimming in a pond, the facts upon which a liability was based are wholly different from those of the present case. There the pond was not a part of a natural stream, but had been caused by placing a fill in the street across a deep ravine. An alley of the city crossed this pond. A sewer was placed in the alley by the city and the sewer pipe was built across the pond, and rested in a trough supported by piling which had been sunk in the alley. This viaduct, so situated, was attractive and alluring to the boys, and for a long time prior to the drowning they had resorted to the place, and habitually climbed along this construction, and jumped from there to the water below. This artificial structure built over the pond was the most attractive feature of the place. The city was bound to know, not only that it was alluring to young children, but also that they habitually resorted to the place to swim. It was a place over which the city itself had control, and it was practicable to build a guard or barrier which would have prevented the children from climbing out on the sewer bridge. These features distinguish that case from the one before us.

Another case cited as an authority is Price v. Water Co., 58 Kan. 551, 50 Pac. 450, 62 Am. St. Rep. 625. There a reservoir in which a boy was drowned was constructed and maintained by the proprietor. It was an attractive place for children who habitually went there for play. The proprietor knew of this habit and of the practice of boys to climb over a stile through an unprotected place in the fence around the reservoir. The custodian in charge of the reservoir, knowing of the danger, permitted the boys to pass through the fence and out upon an apron which rose and fell as the water in the reservoir was increased or lessened. Knowing the danger of the place, and that children were attracted to the place, the proprietor was held to be negligent in failing to use reasonable care to protect them against the danger. In this case, aside from the consideration that the city was not the proprietor of the ground where the pool existed, and also that it had no knowledge of the existence of the pool, and, further, that it had no control over the ground nor right to enter upon it to fill up the pool or build a barrier around it, the doctrine of attractive nuisances cannot well be applied to deep places in a creek or river, and it may well

(89 Kan. 205)

HOWARD v. OSAGE CITY et alt

to carry away the water as rapidly as it falls in times of freshets, and the force with which the dammed water goes through the openings under such circumstances is likely to erode the soil or bed of the stream below the bridge. The same effect is noticeable at every bend in the stream, and also wherever there is a tree or other obstruction along the stream which affects the flow of the water. The doctrine invoked is applicable to things or places artificially created by the owner, but it can hardly apply to pools or deep places in a river or creek which exist in the order of nature. It would be a long stretch of the doctrine of attractive nuisances if the owners of land through which natural water courses run were required to protect them by fences or guards as against venturesome children or trepassers who might go there to swim. In Peters v. Bowman, 115 Cal. 345, at page 356, 47 Pac. 598, 599 (56 Am. St. Rep. 106), it was said: "The owner of a thing dangerous and attractive to children is not always and universally liable for an injury to a child tempted by the attraction. His liability bears a relation to the character of the thing, whether natural and common, or artificial and uncommon, to the comparative ease or difficulty of preventing the danger without destroying or impairing the usefulness of the thing, and, in short, to the reasonableness and propriety of his own conduct, in view of all surrounding circumstances and conditions. As to common dangers existing in the order of nature, it is the duty of parents to guard and warn their children, and, failing to do so, they should not expect to hold others responsible for their own want of care. But, with respect to dangers specially created by the act of the owner, novel in character, attractive and dangerous to children, easily guarded and rendered safe, the rule is, as it ought to be, different." rule was approved in Brown v. Salt Lake City, 33 Utah, 222, 93 Pac, 570, 14 L. R. A. (N. S.) 619, 126 Am. St. Rep. 828, 14 Ann. Cas. 1004, and many cases to the same effect are cited in a note on "Attractive Nuisance" in 19 L. R. A. (N. S.) 1094. See, also, Wilson v. Railway Co., 66 Kan. 183, 71 Pac. 282, and Falkenberg v. Stout, 75 Kan. 172, 88 Pac. 874.

This

Under the conceded facts and the findings of the jury, no recovery against the city can be had, and hence the judgment of the trial court must be reversed, and the cause re

(Syllabus by the Court.)

1. MUNICIPAL CORPORATIONS (§ 818*)-DEFECTIVE CROSSINGS-EVIDENCE.

she was injured had prior to nightfall on the The plaintiff alleged that the ditch in which day in question been bridged or filled at crossings other than the one where the injury ocin which such other crossings were left was curred. Held, that evidence of, the condition competent to show how the defendants had treated the matter of guarding against accident along the line of the ditch, and whether they had used their own usual care in relation to the crossing in question.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1726-1738; Dec. Dig. § 818.*]

2. MUNICIPAL CORPORATIONS (§ 818*) - DEFECTIVE DITCH CROSSINGS-EVIDENCE-SUBSEQUENT REPAIRS.

Repairing or making a place safe after an accident has occurred there may properly be shown. The consequent reluctance of parties thus to guard against repeated injuries for fear they will thereby furnish evidence tending to show their prior negligence is not deemed of equal importance with protection against injury to life or limb.

[Ed. Note.-For other cases. see Municipal Corporations, Cent. Dig. §§ 1726-1738; Dec. Dig. § 818.*]

3. APPEAL AND ERROR (§ 1001*)—MUNICIPAL CORPORATIONS (§ 806*) REVIEW OF EVIDENCE-CITY STREETS-PRESUMPTIONS.

The rules that a verdict or finding supported by competent evidence must stand, and that city streets and crossings are made to walk on and to be assumed as safe for that purpose, followed.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. 1001; Municipal Corporations, Cent. Dig. §§ 1678, 1682; Dec. Dig. § 806.*]

Appeal from District Court, Lyon County. Action by Nellie Howard against the City of Osage City and the Freeborn Engineering & Construction Company. Judgment for plaintiff, and defendants appeal. Affirmed.

C. G. Messerley and J. P. McLaughlin, both of Osage City, for appellants. C. S. Briggs, of Osage City, and A. M. Harvey and J. E. Addington, both of Topeka, for appellee.

WEST, J. The plaintiff sued to recover for injuries sustained in falling into a ditch dug by the construction company along Market street in Osage City. The answers pleaded contributory negligence. The jury found for the plaintiff and answered special questions to the effect that she could not have seen the ditch by looking and exercising ordinary care or known of its existence. Two complaints are made: That the court erred in permitting testimony touching the conditions of the ditch at other places, and

changes made at the place of injury after its occurrence, and that it refused to set aside the findings referred to.

Without stating the facts in detail, it is sufficient to say that the injury occurred about 7 o'clock at night on October 23, 1909; that certain lights placed as warnings were variously estimated to have been from 31⁄2 to 20 feet from the crossing. The plaintiff testified: "I didn't have to step down; as I came to the crossing, I hesitated just a moment, and I saw a mound of dirt and a path over it, and, having seen men go over it ahead of me, I went over it, supposing it was all right, and I fell in the ditch. I did not see any ditch until I fell into it; I did not see any lights or any lanterns as I approached the ditch near to it on either side; I did not see any lights; I did not see any lights as near as 10 or 20 feet on either side." On cross-examination she said: "I did not look for any ditch when I went down to where the dirt quit and come to the level; I did not stop and look for any ditch, and I saw no ditch there; I never stopped as I went down over the ditch there; I never stopped as I went down over the ditch at any time until I went into the ditch; there was nothing to stop me; I walked right up and over and down into the ditch; I can't say that I was looking up or down; I was looking like anybody would; I was looking ahead; when I was walking over the dirt, I suppose I was looking down; I was walking at an ordinary gait; my left foot went into the ditch first; my right foot had just struck the edge of the ditch on the other side; it slipped after it doubled up; one foot had gone directly down, but the right foot doubled up in going down; I didn't see any pipes in there before attempting to step across. I didn't look to see if there was any pipe in there; I did not look for any ditch before I tried to step across it."

Mr. Howard testified: "I went to the place where they told me she was hurt, and found they had an open ditch there; they had thrown the dirt out to the north and laid the pipe in the ditch; the stones that had been in that crossing were thrown to the south, and it seemed to me there was one on each side of the crossing; the dirt was just as it was thrown out of the ditch; it was piled up there probably 20 to 24 inches high; it sloped toward the ditch probably 20 to 24 inches, and toward the sidewalk the slope was more gradual as you approached coming down off the sidewalk; it showed that there had been traffic over it during the time they were digging; it must have been in the middle of the day or earlier that they began digging at that opening; there was a light, one that I saw, as I remember, six or eight feet to the east of that foot path on that dirt pile, and a little over to one side of the dirt pile; from the point where the injury

of the dirt pile, but from where the injury occurred up on the angle it was ten feet; but on the north side of the pile it did not reflect into the ditch; it threw a shadow across the ditch; I don't think there was any other lantern closer than 20 feet in any direction."

The amended petition alleged that: "Prior to nightfall on the said 23d of October the said defendants either bridged or filled up the said ditch at points where each of the said crossings intercepted it with the exception of one, and this was a stone crossing used more extensively than any of the others and situated about one-half block east of the right of way of the Atchison, Topeka & Santa Fé Railway, and, at the point where this crossing intercepted the said ditch, the said defendants knowingly, carelessly, and negligently permitted the said ditch to remain open without being filled up or bridged in any way and exposed without lights or guards to warn persons who might attempt to cross the said Market street upon said crossing."

[1, 2] Under this allegation the court permitted the plaintiff to show how the other crossings were left and guarded on the evening in question, and we think properly so. It was competent, not for the purpose of showing the condition of the street at other places, but for the purpose of showing how the defendants had treated the matter with reference to guarding other similar crossings near the place of the injury, as tending to show whether they had exercised even their own usual care in respect to the crossing in question. That repair immediately after an injury may be shown is the settled rule in this state. A., T. & Santa Fé Rld. Co. v. Retford, 18 Kan. 245, 249; City of Emporia v. Schmidling, 33 Kan. 485, 6 Pac. 893; A., T. & S. F. Rld. Co. v. McKee, 37 Kan. 592, 15 Pac. 484; City of Olathe v. Mizee, 48 Kan. 435, 29 Pac. 754, 30 Am. St. Rep. 308.

[3] The refusal of the trial court to set aside the finding that the plaintiff could have seen the open ditch by looking and exercising ordinary care and prudence is assailed on the ground that there is no evidence to sustain such finding. The refusal to set aside the other finding already referred to was not assigned as error. We have quoted certain evidence on this point, and much not quoted was given, and we are not able to say that, in the exercise of ordinary care at the time, the plaintiff could have seen the open ditch. She testified that she did not see it, and the jury, by the general verdict, found that she was not wanting in the exercise of care, and we find no ground for setting aside their conclusion. It must be remembered that streets and crossings are provided to walk on, and pedestrians may rightfully assume that traps and pitfalls are not left therein, and they are not required to proceed as if in the midst of perils; and, when a city