Schaubel v. City of Manhattan

The opinion of the court was delivered by Dawson, J.: The plaintiffs recovered judgment against the city of Manhattan for the death of their three-year-old child who was drowned in a ditch in the street in front of their residence. The city had excavated a ditch the entire length of the block for the purpose of laying a water main. Lateral ditches [431] to the sides of the street had also been made to bring the water supply to the residence property lines. The excavations were four feet deep. The work was about completed on Monday, August 16, 1915, and the two ends of the street block were barricaded against travel. That night a heavy rain fell and a considerable portion of the vicinity drained toward this particular street and block and the ditch excavations were filled with water. The following afternoon the child ran out across the parking into the street “to wade and play” and fell into the lateral ditch in front of her home and was drowned. The petition charged the city with negligence in allowing the ditch to remain open and unprotected and filled with water, and that the child while wading and playing in the street fell into the ditch and was drowned. It was alleged that the child was too young to know and appreciate the danger, and that her mother was busy and did not know and appreciate the danger, and that the parents used all proper care and diligence in looking after the child. The jury returned a verdict for plaintiffs for $4,500. Certain special questions were answered: “First: Did either or both of the parents of Agnes Schaubel know that there were ditches in the street in front of their home, and that these ditches were filled with water prior to the time Agnes Schaubel escaped the custody of her parents and was drowned? “Answer: Yes, but not the .[particular lateral] ditch in which the child was drowned. “Second: By the exercise of ordinary care and prudence, could the parents of Agnes Schaubel have restrained her from leaving their custody and control, and thereby have prevented her from going into the street where she was drowned? “Answer: No. “Third: Did the city of Manhattan have a large number of workmen at work on the ditches on Laramie street, at Fourth and Laramie and at Third and Laramie, and in the block between Third and Fourth, during the period from noon until the child was drowned? “Answer: Testimony shows twelve men were at work. “Fourth: If you answer the third question in the affirmative, state how near you find any of the workmen were to the place, the child was drowned, at the time of the accident? “Answer: Between seventy-five and one hundred feet. “Fifth: Did the defendant herein, on the day of the accident have a number of men engaged at work in bailing the water out of the ditch on Laramie in the block where the Schaubels lived? “Answer: Yes, at work in the main ditch. [432] “Sixth: Do you find any negligence on the part of the city, and if so, state in what particular it was negligent? “Answer: Yes, because they left the ditch unguarded and exposed.” The trial court ordered a remittitur of $1,000 and gave judgment for plaintiffs for $3,500. The familiar schedule of errors is assigned, but the gist of the city’s complaint is the net result and the excessive verdict. Examining the errors assigned, no error can be discerned in overruling the demurrer to the petition nor in overruling the demurrer to the evidence. Nothing serious can be noted concerning the admission or exclusion of evidence, nor in the court’s instructions so far as presented by the abstract of the record. The defendant concedes that it was its duty to safeguard its streets for ordinary travel and to effectively close this street to ordinary uses while it was undergoing repairs, but it is contended that the use of a street by a child to “wade and play in” while the street was dug up with ditches for the laying of water mains was not an ordinary use of the street, and that the city was not bound to guard the street against such a use, nor could the city be required to anticipate and prevent the accident. While the street was torn up and the ditches flooded, it was the duty of the city to exercise reasonable care to keep the children off the street, the means for so doing being somewhat a matter of discretion on the part of the city. The city could and should have anticipated the danger and should have made some reasonable effort in good faith to avert it. The foreman for the city realized the danger to children and had cautioned his workmen to keep them away. But when asked if he had seen plaintiffs’ child before it was drowned he answered: “No, No, No, I got so accustomed to seeing so many children along the street there that I didn’t hardly pay any attention to who the children were. The main thing I looked out was to try to keep them out of the way.” This testimony supports the finding of the city’s negligence. The complaint as to the excessive verdict and judgment requires no discussion. The trial court pared down the verdict a thousand dollars, and the amount of the judgment finally [433] awarded, while large, is not so gross as to justify an appellate court in ordering its further reduction. The judgment is affirmed. Marshall, J., dissents.