Butz v. Cavanaugh

Macfarlane, J. Plaintiff, a minor, by his next friend, prosecutes this suit to recover of defendants damages on account of having his feet badly burned by reason of the alleged negligence of defendants. The defendants are Timothy Cavanaugh, the owner of an old rock quarry, the Cavanaugh Construction Company, a corporation, and lessee of said quarry, and the city of St. Louis. An old quarry about sixty feet deep, and about one block in area, constitutes the dangerous property complained of. The property was surrounded on the east by Glasgow avenue, on the south by Madison street, on the west by Garrison avenue, and north by Magazine street. The wall of the quarry on Harrison avenue was nearly perpendicular, and was protected by a fence. Magazine street was only partially improved. Prom this street the quarry was used, by authority of the defendants, as a public dumping place for all kinds of debris gathered from streets, alleys, and back yards. This was burned and there were frequently smouldering fires therefrom. Along this street into the quarry [509] the banks were steep but sloping. Generally a watchman was kept at this dump to direct the unloading of the debris thrown into it. There was no fence or other protection on this, the south side of the quarry. Boys sometimes visited this dumping place to look for cans, wire, and other articles thrown out there. On the ninth day of September, 1893, plaintiff was twelve years of age, and lived with his parents about two blocks south of the quarry. He had about two weeks before been warned by his father not to go about the dump, as he was liable to get burned. On said day he and two companions were on Magazine street about its junction with Garrison avenue, and he saw, about the bottom of the embankment, some wire which he concluded to get. He ran down the embankment and about two thirds of the way down stepped both feet into a smouldering fire, or hot ashes, and, being barefooted, his feet were severely burned. The watchman was not present. These, briefly stated, are the facts developed at the trial. Certain ordinances of the city were read in evidence defining nuisances and providing for their abatement, and requiring holes and other dangerous places to be properly inclosed with fences or walls. Two sections of these ordinances read as follows: “See. 619. All holes, depressions, excavations or other dangerous places within the city of St. Louis that are below the natural or artificial grades of the surrounding or adjacent street shall be properly inclosed with fences or walls, or be filled up so as to prevent persons or animals from falling into them.” “Sec. 620. The street commissioner shall notify the owners or occupants of premises upon which such dangerous places exist, to cause fences or walls to be built around them, or to cause the same to be filled up, within such period as he may deem the exigencies of [510] the case may require. In case of failure to comply by any of the owners or occupants of said premises, after the notification above required has been given, then they shall be deemed guilty of a misdemeanor, and upon conviction thereof, be fined before the police court not less than ten nor exceeding five hundred dollars.” The owner and lessee of the property are charged with negligence in maintaining a nuisance in a populous portion of the city, in failing to fence the quarry, and in permitting it to be used in such a manner as to attract children into a place of danger from hidden fires. The city is charged with negligence in permitting a nuisance on the street and in not requiring the hole to be fenced. After hearing the evidence of plaintiff, on intimation from the court that a demurrer to the evidence would be sustained, plaintiff took a nonsuit with leave. A motion to set aside the nonsuit was overruled, and plaintiff appealed. I. Plaintiff was not injured by falling into a dangerous excavation on the street. When injured he was on private property some distance from the street where he went voluntarily. Though the street may have been in a negligently dangerous condition, that was not the proximate cause of the injury. The city can not, therefore, be held responsible for the injury on the ground of neglect to keep the street in proper condition. Nor can the city be held responsible for injuries to private persons resulting from a failure to enforce its police regulations, which provide for the prevention and abatement of nuisances. Harmon v. City of St. Louis, ante, p. 494; 2 Dill. Mun. Corp. [4 Ed.], see. 951. As to the city, the judgment was clearly right. [511] II. Section 619 of the ordinances requires all such holes and depressions as the one in question to be “inclosed with fences or walls, or to be filled up, so as to prevent persons or animals from falling into them.77 The ordinance thus prescribes, as a police regulation, a duty to be performed by persons owning such dangerous property. A failure to comply with the requirements of the ordinance would be a breach of duty to the public for which one injured because of it could recover the damages sustained. This liability has been often declared in actions for damages resulting from a failure to observe the requirements of ordinances regulating the operation of trains in cities. Such breach of duty is held by this court to constitute negligence per se. It, at least, with the resulting injury, makes a prima facie right to recover. In the case of Harmon v. St. Louis, supra, decided at this term, by court in banc, it was held that one who builds a wooden structure in the city contrary to an ordinance prohibiting the erection of such buildings, is liable to respond in damages to any one specially injured thereby. The general rule, in the absence of express law, is, that one is not required to fence, or otherwise secure his private property for the protection of strangers, unless the dangers therefrom are so near a public highway as to threaten the safety of persons exercising ordinary care in using the way. Overholt v. Vieths, 93 Mo. 424; Witte v. Stifel, 126 Mo. 303. But in case a statute, or valid ordinance, requires the owner to take such precaution, and he neglects or refuses to do so, the unprotected property becomes a public nuisance, and the owner will be liable as for maintaining a nuisance on his premises. Harmon case, supra. [512] But this ordinance is in derogation of a common right, and a failure to comply with its requirements Should not be treated as a license to voluntary trespassers to go upon the property at will. It was evidently intended to protect those only who were lawfully using the public streets and not those who voluntarily leave the street and go upon the property for their own convenience or pleasure. A fence would be no protection against such persons. These last remarks may not apply to persons non sui juris, who may wander upon the property, but we do not regard plaintiff as such a person. He was an intelligent, active lad of twelve years, who had been warned by his father of the danger of going into the excavation. He must be taken as voluntarily assuming the risk of injury in going down the dump. The attraction of a piece of wire does not excuse the trespass. The judgment is affirmed. All the judges of this division concur.