Schwab v. Anderson Steamboat Co. ( 1911 )

Morris, J.

Respondent, a minor twenty years of age, was injured July 4, 1910, by falling from a swing, which it is alleged was in Fortuna park, on Mercer island. The park was alleged as under the ownership and control of appellant, and the swing as one maintained by it within the park.- The tree from which hung the rope respondent was using as a swing was shown by all the evidence, both that given by appellant and respondent, to be outside the park. In fact, there was no contention that it was within the park or nearer to it than seventy-five feet; respondent’s theory on the trial seemingly being that, there being no dividing line between the park proper and the outside territory in which the swing was, the public might regard all the ground as within the park, and subject to the control of appellant. It might be that a case could be predicated upon such a theory. But this one is not. It depends for its success upon proof that appellant owned or controlled the place where the injury happened, and maintained the swing. The court took this view of it, in the charge to the jury to the effect that, if the place where the respondent fell was outside of the ground controlled by appellant, there could be no recovery. When, however, he was asked to take the case from the jury because of the failure to show the place of the injury under the control of appellant, he thought the question, as one of fact, should be submitted to the jury, because there was testimony that the place of the accident was For-tuna park. While it is true the respondent testified the accident happened at Fortuna park, he at the same time described the tree to which the rope was attached; and this tree is shown by all the testimony to be outside of the park, and not within the control of appellant. There was no dispute as to this fact in the evidence, and the court should have so held on appellant’s motion.

There being no proof of the fact upon which respondent relied to establish a liability against appellant, the case should have been dismissed on appellant’s motion.

Judgment reversed, and the cause remanded with instructions to dismiss.

Dunbar, C. J., Crow, and Ellis, JJ., concur.