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(273 S.W.) reasonably prudent persons must so use idea of these little innocent boys, hardly their property so as not to unreasonably in- old enough to know what they are doing, jure others, and, if that duty is not exercis- being guilty of trespass, which would bar ed, then they are liable for its violation. the parents' right of a recovery, when neither In the case at bar, the city unr isonably they nor the lot'owners ever thought of such constructed the dam or fill across Twenty- a thing, is shocking to the human intelliFirst street, and thereby caused a large body gence. Williams v. Gas Co., 274 Mo. 1, 202 of surface water to accumulate, coverings. W. 1; Day v. Ice Co., 136 Mo. App. loc. some 8 city blocks, right in the heart of the cit. 275, 117 S. W. 81; Beckwith v. City of city, varying in depth from a few inches Malden, 212 Mo. App. 488, 253 S. W. 1. near the edges thereof, to 12 or 14 feet in The above cases lend color to the foregodepth in the center, thereby making it a reg. ing observations; also the case of Beckwith ular death trap for children. The only won v. City of Malden, 212 Mo. App. 488, 253 der is that there were not dozens of them S. W. 1, holds that the city must anticipate drowned therein during the many years that the proclivities of boys to climb trees. it existed.

[7] IV. Counsel for appellant next insist [5] The legal obligation rests upon all who that the city was not liable for the death create or allow such gerous conditions to of the boys bec use they were drowned on use reasonable precautions to see that no un- private property, and therefore it had no necessary injury shall flow therefrom to oth- power to abate the nuisance. ers, and, if that duty is violated and injury In my opinion this insistence is untenable. results, the guilty party will be held liable for the reason the record shows that the fill in damages.

or dam was constructed by the city within This was the principle upon which Godfrey the limits of Twenty-First street and flush v. K. C. Light Co., 299 Mo. 472, 253 S. W. 233, up with the lateral lines thereof. Under that was based, and correctly so, if it had had state of facts there was nothing to prevent any substantial facts upon which to rest. the city from making a drain through or There the majority opinion held that a lit- under the dam. By going upon the fill or tle crooked walnut tree was an ttractive | dam and opening a culvert through it, the place for children to congregate, and there- city could have thereby easily and inexpenfore the company should have known that sively drained, all the surface water from fact and have insulated its wires. To that the pond, and that too long before the boys part of the opinion I dissented and still dis were drowned. sent. I doubt that if there is a single man The authorities cited under paragraph I of or woman who reads that opinion who ever this opinion hold it to be the legal duty of saw children climbing such walnut trees out a municipal corporation to abate such a nuiin an open pasture, while with the ponds sance as this one was, and that it is liable in there is no one of common observation but damages for all injury sustained in consewho continually sees children flocking to the quence thereof. ponds of the country to swim or skate. On V. This case is in some respects like the that account the wonder is that they have case of Capp v. St. Louis, 251 Mo. 345, 158 not been a more fruitful source of death and S. W. 616, 46 L. R. A. (N. S.) 731, Ann. Cas. litigation than they have been.

1915C, 245. In that case there was a deep [6] III. It is also insisted by counsel that pool of water in a large creek or small river the deceased children were trespassers at in Forest Park, which had been caused by the time they lost their lives and therefore the city emptying a storm sewer into the the parents are barred from a recovery in creek, which dug out or excavated the hole this case.

in which the water accumulated, and, while This point was decided against that con- playing in the creek, the child stepped into tention in the Godfrey Case, supra; but, in- the deep pool and was drowned. In that dependent of that, I do not think that there case we held the pool was an attractive place was in fact any trespass whatever in this for children and a public nuisance, and case, or anything that smacks of trespass. should have been abated by the city. The Common observation has long ago taught record showed the city was negligent in that us that, when a man or set of men turn out regard which resulted in the death of the their lawn for public pasture or playgrounds, child, and it was therefore liable for the or flood it with water for swimming or skat- damages sustained by its parents. ing purposes, it would be hard to say that In the case of Jensen v. Kansas City, 181 those who use it are trespassers, or can be Mo. App. 359, 168 S. W. 827, Judge Ellison held liable for such violation of the law. It again considered the Capp Case, supra, and is like the case of pedestrians walking along | in so doing said: a railroad track in violation of the statute.

“In the latter case, it was held that children where there is no actual objection made playing in parks were not trespassers and the thereto. This court and all others of the court said, in effect, that they were the instate have repeatedly held that the pedes- vitees of the city. There a child, with a comtrians become licensees and not trespassers. panion, was wading in a pool, shallow at the I think the same is true in this case. The edge, but several feet deep towards the center,

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and practically unguarded. The question of the WALKER, WHITE, and RAGLAND, JJ., city's negligence was held to be for the jury. concur. In this case the low wall, or balustrade, 25

GRAVES, C. J., and DAVID E. BLAIR inches high, was the only guard, and it, of and ATWOOD, JJ., dissent on the ground course, was no protection, once a child was on top of it, against the water in the basin of the that there is no liability. fountain. The wide coping which topped this wall was a great temptation to children to run

GRAVES, C. J. (dissenting). Plaintiffs, around it. We think it too extreme to say, as was suggested in argument, that a boy 5 years

in this action, sue for damages occasioned old could not climb onto the top of a wall of to them by the death of one of two twin that height without assistance. The trial court boys, aged 6 years and 7 months, when both was right in submitting the case to the jury.” were drowned in a pond on March 8, 1920.

In the afternoon of that day the two boys, The Supreme Court of Nebraska, in the Karl and Kenneth, came home from school case of City of Omaha v. Richards, 49 Neb. in the afternoon about 3:15 or 3:30 o'clock, 244, 68 N. W. 528, held:

and, after changing clothes, left, and were "That the city is liable for the death of a

next seen upon the pond just south of Twentyboy 10 years old, by drowning, caused by falling First street and between Bales avenue and from a section of wooden sidewalk which he was Askew street. There was an inch or more of using as a raft upon a pond of water within ice upon the pond, and the boys were seen the corporate limits, a part thereof being in a playing with a bottle upon the surface of public street and part upon private property; the ice, one running after the other. Near it being shown that such accumulation of water the deeper portion of the pond the ice gave was occasioned by the negligence of the city way, and the child in front sank under, imin grading said street and constructing a storm

mediately followed by his brother. Their sewer therein."

pictures are in the record, and it is easily The following cases also announce the discernible that they were both bright little same principle of law; Daneschocky v. Sie- fellows, as the evidence tends to prove. The ble, 195 Mo. App. 470, 193 S. W. 966 ; Harri- present action is for the death of Karl E. son v. Kansas City Light Co., 195 Mo. 623, Davoren. From the evidence, Twenty-First 629, 93 s. W. 951, 7. L. R. A. (N. S.) 293; street runs east and west, and Bales avenue Buckner v. Horse & Mule Co., 221 Mo. loc. cit. and Askew street run north and south, in709, 711, 120 S. W. 766; Obermeyer v. Chair tersecting and crossing Twenty-First street. Co., 229 Mo. loc. cit. 111, 129 S. W. 209; Kup

There was no intervening street between ferle v. Ry. Co., 275 Mo. loc. cit. 457, 458, 205 well as Twenty-First street, are public high

Bales avenue and Askew street. They, as S. W. 57; Washburn v. Light Co., 202 Mo. App. loc. cit. 116, 214 S. W. 410; Thompson ways in Kansas City, Mo. The negligence r. City of Slater, 197 Mo. App. 247, 193 s. is thus charged in the petition : W. 971; Hudson v. Power Co. (Mo. App.) 234 “That on the 8th day of March, 1920, about S. W. loc. cit. 871; Shafir v. Sieben (Mo. 3:45 o'clock p. m., said Karl E. Daroren was Sup.) 233 s. W. 420, 17 A. L. R. 637; Heg- playing upon the ice upon a pond of water loberg v. Ry. Co., 164 Mo. App. 514, 147's. W. cated on the south side of Twenty-First street,

between Bales avenue and Askew street, in 192.

Kansas City, Mo.; same being the only pond [8] VI. There was no error in the instruc-l on the south side of said street between Bales tions given for the respondent, telling the and Askew. That the ice upon said pond broke, jury to find that the pond in question was and allowed said Karl E. Davoren to fall attractive for children; that is true, yet the through the ice into the water of said pond, as doctrine of the turntable cases has nothing a direct result of which he was then and there to do with the principles of law underlying drowned and came to his death. The said pond this case, but, independent of that the in- was created and caused directly by the damming struction was still sufficient, in that they re-caused by the negligence of the defendant in

up and accumulation of surface water directly quired the jury to find the pond was danger- constructing and maintaining a high grade and ous and that the city knew, or should have fill on Twenty-First street at this place, and known, it in time to rectify the dangerous in failing to provide and maintain a sufficient condition.

culvert or other outlet therein to allow said [9] VII. The judges, who agree that there surface water to escape. That said pond conshould be a recovery by plaintiffs in this stituted a puisance, and created a condition case, further agree that the amount of re-dren and others, and that the defendant knew,

attractive to children and dangerous to chilcovery (under previous rulings) should not

or by the exercise of ordinary care should have exceed $5,000. It is therefore adjudged that known, all of said facts, circumstances, and if plaintiffs will remit the sum of $5,000 as conditions in time so that, by the exercise of of the date of the original judgment, then ordinary care, said conditions could have been the remainder of such judgment ($5,000) will averted, rectified, and remedied, and the death be affirmed as of the date of the original of said child averted." judgment. The remittitur is to be made within 10 days, and if not so made, then the Damages were sought in the sum of $10,Judgment is to be reversed and remanded. 000. The answer was a general denial

(273 S.W.) Plaintiffs had a verdict for $10,000, .and, by drowning; and if you further find that there from the judgment entered upon such ver

was a high fill on Twenty-First street at said dict, defendant has appealed. It appears place, and that the defendant city constructed that about 20 years ago Kansas City im- and maintained said fill without providing an proved Twenty-First street, and in doing outlet therein reasonably sufficient to allow so constructed or made a fill some 20 feet ant city was thereby guilty of negligence (if

surface water to escape, and that the defendhigh for a distance of 150 feet, between Bales you so find), and that said pond was directly avenue and Askew street. There was a caused by the damming up and accumulation of gulch or ravine coming in from the south, surface water by said fill (if you so find); and if and the topography of the lands south of you further find that said pond created a condiTwenty-First street was such that the wa tion attractive and dangerous to children, and ter accumulated and formed a lake of consid- that the defendant city knew, or by the exorcise erable dimensions, and in the deeper portions of ordinary care should have known, all of the

facts, circumstances and conditions herein sub(near this embankment upon which the traf. I mitted, relating to said fill and to said pond fic way and sidewalks on Twenty-First street and the danger thereof (if you so find), in time were constructed) the water was 12 to 15 so that, by the exercise of ordinary care, said feet deep. It stands admitted in the record dangerous condition (if you so find) could have that the whole of this lake was upon private been averted, rectified, and remedied by proproperty, and no portion thereof in the viding a reasonably sufficient outlet in said fill street or upon city property. Details will

to allow surface water to escape, and that the

death of said Karl E. Davoren would thereby be left to the opinion. 1. In this case the evidence in the bill of Karl E. Davoren' was at and before the time

have been averted; and if you further find that exceptions is printed in full, giving both of his death an unmarried minor, that plainquestions and answers. In other words, the tiffs were at the time of said death, and are evidence is not given in narrative form. Mo- now, husband and wife, and the father and tion was filed by respondents to dismiss the mother, respectively, of said Karl E. Davoren, appeal for this reason. The motion to dis- and as such had the custody of said minor miss was overruled before the argument of child; and if you further find that the death the cause, and for reasons which we after- of said child directly resulted from negligence ward expressed in Frohman v. Lowenstein, of the defendant city as herein submitted (if

you find the defendant city was negligent as 303 Mo. 339, 260 S. W. 460, No. 23533, when herein submitted), and that plaintiffs have sussuch case was determined by the court intained damages as a direct result of the death banc. This opinion in banc has not been as of their said son-then you are instructed by yet published, but will be in the officially the court that you should return a verdict in reported cases later.

favor of the plaintiffs and against the defendII. It is hard to eliminate from the mind ant.” the bright faces of those two little boys, and

We have italicized several pertinent facts the writing of the cold law of this case is in this instruction—(1) the portion pertainthereby rendered no easy task. Appellants ing to surface water, which will be material contend that the theory of the petition puts upon another point; and (2) that part which the case within the “turntable cases” rule. expressly submits the turntable doctrine. Respondent denies this, in the face of the The turntable cases proceed upon the theory instruction which required the jury to find that it is negligence to maintain (unguarded, erery element of the so-called turntable dọc- unprotected, and insecure) a turntable or trine. The allegation in the petition we have similar instrumentalities which are attracset out in the statement, but we quote the tive to children of tender years and imear-marking clause here thus:

mature minds. The petition in this case "That said pond constituted a nuisance and pleads the maintenance of “a condition atcreated a condition attractive to children and tractive to children,” and asks relief as in dangerous to children and others, and that de- the turntable cases. The instruction covers fendant knew," etc.

the same matter, thus showing that the The instruction requires the jury to find tion to his own pleadings.

pleader, by instruction, gave that construc

In this situathe foregoing pleaded fact, so that both by tion it.cannot be urged that this portion of pleading and instruction this trial proceed- the petition is surplusage. Each and every ed upon the turntable case theory. At the allegation of the petition were submitted by expense of brevity, we set out the instruc- the instruction. The petition charged that tion:

this "condition," "attractive to children," was "If you believe and find from the evidence created and maintained by the defendant. that on the 8th day of March, 1920, about 3:45 Whatever may have been the intent of the o'clock p. m., Karl E. Davoren was playing pleader, his language was unfortunate, and upon the ice on a pond of water located on the

we have a case where there is an attempt south side of Twenty-First street, between Bales avenue and Askew street, in Kansas City, to recover upon the turntable case doctrine. Mo., and that the ice on said pond broke and The instruction given construes the pleadallowed said Karl E. Davoren to fall through ing. But it is urged that there could be no the ice into the water of said pond, and that, turntable doctrine in the case, because the as a direct result thereof, he came to his death | "condition attractive to children" was not

upon the city's property. There is language In this case the city had such rights in in Williams v. Gas & Electric Co. (Mo. App.) Twenty-First street that it could construct 187 S. W. loc. cit. 557 (Springfield Court of it in such manner as to make a proper roadAppeals), which lends support to this idea. way, and make its embankment of such When that case reached this court (274 Mo. height as to protect it from surface water. 1, 202 S. W. 1), there was no approval of In so doing it was guilty of no act of negthat language used by the Court of Appeals. ligence. In changing the grade of its street, While the cases involving the doctrine usual- it becomes liable in damages to adjoining ly are cases where the inhibited structure is property owners, but such right to damages upon the premises of the defendant, yet it is not based upon negligence. There can by no means follows that an inhibited struc- be no negligence in doing what the city had ture might not be wrongfully erected and the legal right to do. The damages in conmaintained by defendant upon the premises demnation proceedings are based upon takof another, and without leave or license from ing or damaging private property for pubsuch other, and the turntable rule would lic use, and not upon negligence. apply. A turntable' itself might be placed The city, in its fight against surface water upon property not owned by defendant, and and for the protection of its street, had the without leave or license from the owner of legal right to raise the level of the property the premises. The pleadings and the instruc- under its control, and having such legal right, tions in the instant case show a clear at- could not be guilty of negligence in doing the tempt to make a case under the turntable act. A legal right is a lawful thing. The Joctrine. The facts do not bring it within city did not have to provide waterways the rule, and the demurrer to the evidence through or over its property in the disposishould have been sustained. Overholt v. tion of surface water. See authorities, suVieths, 93 Mo. 422, 6 S. W. 74, 3 Am. St. Rep. i pra. The Missouri rule as to surface waters 557; Arnold v. City of St. Louis, 152 Mo. is the common-law rule, and not the civil173, 53 S. W. 900, 48 L. R. A. 291, 75 Am. law rule, and for this reason we need not St. Rep. 447; Moran v. Pullman Car Co., go beyond our own case law. The evidence 134 Mo. 641, 36 S. W. 659, 33 L. R. A. 755, in the case, under this rule of law, shows no 56 Am. St. Rep. 543; Kelly v. Benas, 217 negligence and hence no liability. Mo. 1, 116 S. W. 557, 20 L. R. A. (N. S.) 903; IV. Divers lines of cases are cited and Buddy v. Union Terminal R. Co., 276 Mo. elaborated upon by learned counsel upon 276, 207 S. W. 821 ; State ex rel. v. Ellison, both sides of the case. We shall not pursue 281 Mo. 667, 220 S. W. 498; Rallo v. Con- their thoughts, when the solution of the case struction Co., 291 Mo. 221, 236 S. W. 632. is one of such simple application of firmly

This court has persistently refused to ex- fixed rules. Running through it all is the tend this doctrine of negligence. Kelly v. legal right of the city (under our rulings) Benas, 217 Mo. loc. cit. 13, 116 S. W. 557, to construct a solid embankment on its road20 L. R. A. (N. S.) 903; State ex rel. v. Elli- way, and therefore there was no negligence son, 281 Mo, loc. cit. 680, 220 S. W. 498 et in so constructing and maintaining it. Then seg.

viewing it from another angle, and supposIn no instance have we ruled facts such ing that the owner of the lands south of as we have here to be within the rule. There Twenty-First street, where this pond was are, however, other features in this case made, had themselves built such an embank. which preclude recovery. Of these next. ment and made this pond on their own land,

III. As indicated in our statement, there just as it is now, except the embankment was a draw such as would gather the sur- would have been constructed further to the face water and cast it upon Twenty-First south rather than upon the roadway of the street on its way northward. The respond-city would the landowners be liable? ents' learned counsel concede the water to be Most certainly not under the cases cited surface water, ' in the instruction set out under our point II, supra. If the city paid above. The topography of the country was the assessed damages to, or became liable such that from several directions the sur- for, damages to these property owners for face water ran to this lower portion of the damaging their property by raising the natland draw) and was cast upon and across ural grade of the street, it (in a sense) paid Twenty-First street. It was by pleadings, for the privilege of constructing a pond of evidence, and instructions treated and ac- surface water on this private property, and cepted to be surface water. The alleged neg- would be no more liable than the private ligence of the city must be measured by its owners for the maintenance of the pond. rights to both build and protect its streets. Suppose the city in its private business or Surface water in Missouri is a common ene- proprietary capacity owned a lot or tract of my, and the landowner has the right to pro- ground within the city, and for some lawtect his property from its depredations, al- ful purpose and use built a pond thereupon, though in so doing the water may be cast would it be liable for children who might upon the land of another. Goll v. Railroad, be submerged therein? We think not. In 271 Mo. loc. cit. 667 et seq., 197 S. W. 244, such capacity the city (although a corporate and cases therein cited and discussed. body) would stand before the law just as

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(273 S.W.) an individual. It might need a pond to on the 1st day of June, 1924. He returned run a municipal light or water plant, or some July 24, and found the doors of the club other things, not done in a governmental house open, and one window taken out and set capacity. The maintenance of a pond of aside. Many of his articles were gone, inwater upon private property has not been cluding his reel and rod, minnow trap, landeclared negligence in Missouri. It must not tern, and some dishes and cooking utensils. be overlooked that this pond was not in a Other evidence showed that the club house street or upon city property. So that we was closed and locked up to a very few days can see no theory upon which the recovery before July 24. in this case can be permitted to stand, much In September the deputy sheriff, in a as we would like to see the parents com- search of defendant's home, found articles pensated for the loss of these two bright lit- like those which Wallace missed, bearing tle fellows. The judgment should be simply marks by which Wallace identified them as reversed, and it is so ordered.

his. Defendant was arrested and, while beI hereby file the foregoing opinion, writ- ing taken to the county seat by the sheriff, he ten by me for Division 1, as my dissent in said that the affair had got him in bad banc. ATWOOD, J., concurs in the result of shape; that the truth of the matter was that these views.

his wife and little boy got the stuff, and he did not know what to do about it. He said that he took the minnow trap and put it in a fence corner near his potato patch. Later

he directed the sheriff where he should find STATE v. STEELMAN. (No. 26086.)

some of the articles. The sheriff did not find (Supreme Court of Missouri. Division No. 2. | them there, but later found them where the June 5, 1925.)

wife and little boy of defendant showed him.

The defendant testified, denying that he 1. Larceny w 68(1)-Evidence, though en broke into the club house and took the arti

tirely circumstantial, held sufficient to submit cles. His wife was sworn, and testified that guilt to jury.

she and her boy were picking berries near Evidence, though entirely circumstantial, the club house, they saw the door standing held sufficient to submit accused's guilt to jury. open and went in and got the articles and 2. Criminal law 684–Trial judge, in his took them away; that her husband had noth

discretion, may permit evidence in rebuttal ing to do with it, but when he came home which should have been introduced in chief. told her to go and take them back. This she

Trial judge, in his discretion, mày permit was unable to do because of an illness which evidence in rebuttal which should have been followed. introduced in chief.

The state offered evidence in rebuttal to 3. Criminal law 684-Admission in rebuttal show that defendant had said he was in

instead of in chief of evidence of value of pretty bad trouble; he would have to have property taken held harmless.

his wife bear the blame or he would go to Admission in rebuttal instead of in chief of the penitentiary. evidence that property taken was worth $25 The jury was instructed in proper form held harmless, where accused had ample op- that if the defendant broke into the building portunity to meet such evidence.

and took away the things mentioned and if Appeal from Circuit Court, Shannon Coun- they were of the value of $25, or of any val

ue, they might find him guilty of grand larty; E. P. Dorris, Judge.

ceny; but if they found that he took the Charles Steelman was convicted of larceny, things (without a finding that he broke into and he appeals. Affirmed.

the building), and carried them away, and if Robert W. Otto, Atty. Gen., and J. Henry they were of less value than $30, they should Caruthers, Asst. Atty. Gen., for the State. find him guilty of petit larceny. The jury

found him guilty of grand larceny, and asWHITE, J. The defendant, by information sessed his punishment at the lowest penalty filed with the circuit clerk of Shannon coun- provided by the statute (section 3305, R. S. ty, was charged with burglary and larceny. 1919) two years in the penitentiary. On trial, September 19, 1924, he was found [1] I. Appellant's motion for new trial asguilty of larceny, and his punishment assess- signs error to the admission and exclusion of ed at two years' imprisonment in the peni- evidence and to the giving of instruction on tentiary. He appealed.

the part of the state. It is further claimed The evidence showed that one Clarence that there was not sufficient evidence to supWallace, in June, 1924, owned a controlling port a verdict of guilty. We find the eviinterest in a club house on Current river, in dence, while entirely circumstantial, is suffiShannon county. He owned and kept stored cient to submit the question of defendant's in the club house dishes, fishing rod, reel, guilt to the jury. minnow trap, and other articles used in fish (2, 31 II. The only exception saved to the ading. He saw these articles in the club house mission of evidence was where the trial court

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