Peninsular Trust Co. v. City of Grand Rapids

Moore, J. A reference to the accompanying plat will help to understand the situation. The defendant is charged in the declaration with having kept and maintained a large reservoir as a part of its waterworks system. It is claimed also that, by reason of the construction, location, and appearance of this reservoir, “ it had a great tendency to and did excite the curiosity of, and was an attractive place for, children to play, many of whom frequented the same as a matter of childish curiosity.” The reservoir is so constructed that the top is between 20 and 25 feet above the streets. The outside of the reservoir is banked up with sufficient slant to be self-supporting ; the inside is of puddled clay and cobblestone, with a cement coating. The slope on the inside is approximately 45 degrees, and the capacity is estimated at 96,000,000 gallons. Around the entire property there was a tight board fence about seven or eight feet high where it is not on the wall. On the northeasterly side of the reservoir the outer base of the reservoir was supported by a stone wall, and at this point the fence was built upon the wall. The wall did' not continue all the way around the reservoir. Near one end of the stone wall the earth had been either dug out or washed out, making a hole under the fence. [573] On the 3d day of July, 1899, the deceased, Ruby M. Behrend, left her home at about 9 o’clock in the morning, and went away to play. One of her playmates told her and her companion that there were flowers “up there,” and about 11 o’clock Ruby, with a companion 10 years of age, left the traveled portion of the street, went through under the fence, climbed up the steep incline to the top of the reservoir, removed her shoes and stockings, and in attempting to wade in the water was drowned. The plaintiff, as administrator, brought this action against the city, and recovered a judgment of less than $400. The case is brought here by writ of error. Several questions are discussed by counsel, but, as one of them is controlling, no reference will be made to the others. At the time of the trial of this case the opinion in Ryan v. Towar, 128 Mich. 463 (87 N. W. 644), had not been rendered. The writer of this opinion did not agree with the conclusion reached by a majority of the justices in Ryan v. Towar, but since it was filed it must be regarded as the law in this State in all like cases. Nearly all the cases cited in the able briefs of counsel filed in this case are referred to in one or the other of the two opinions filed in the case of Ryan v. Towar. The opinions are long and carefully considered. The case was decided so recently it is not necessary to repeat here what was said. I.do not think it possible to distinguish this case from that one. The, judgment is reversed, and no new trial ordered. Hooker, O. J., Grant and Montgomery, JJ., concurred.