Howard v. City of Fresno

MARKS, J.

This is an appeal from a judgment in favor of George A. Howard, a minor, in the sum of $1250, Edith Howard, a minor, for nothing, and George Howard, their father, in the sum of $286.09, against the City of Fresno, a municipal corporation organized and existing under a freeholders’ charter. The action was brought under section two of an act approved June 13, 1923 (Stats. 1923, p. 675), which we will call the Public Liability Act.

At the time of his injury on October 6, 1935, George A. Howard was of the age of ten years. On that day he went with his mother, two adult friends and several children, to Roeding Park, a public park in the City of Fresno, which was in very general use by the inhabitants of that city. The party had lunch in the early afternoon and the children amused themselves in the children’s playground, a portion of the park set aside for the entertainment of children. After amusing themselves in a wading pool and on various mechanical contrivances the children separated. George climbed a tree, and at least some of the other children went over, to an ash pile in the neighborhood. These other children re

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turned and one of them, Donald, told George that he had put his foot in the ash pile “and ‘Ouch, ouch’, it hurt him”. Another of the children, Edith told George that she put her feet in the ashes and it hurt her too. George and Donald ran over to the ash pile and on a dare from Donald, George ran up onto it. There were hot coals under the ashes and his feet were burned.

Roeding Park has an area of about 120 acres. On October 6, 1935, a large part of it was planted to trees and lawns. The children’s playground was located some distance west of the east park boundary. About three hundred feet south of the children’s playground there was a trash-burning area on which was burned the park grass and tree trimmings and other refuse. The refuse from the burnings had accumulated into a pile between sixty and seventy feet long, thirty and forty feet wide, and about six feet high. Ashes covered the surface of the pile under which were live coals. Numerous trees were planted between the children’s playground and the trash-burning area.

Section two of the Public Liability Act was thus quoted from and discussed in