(dissenting) : I dissent. I take no stock in the doctrine that the city should have barricaded or otherwise guarded the sides of the street. While there may be no negligence on the part of the parents in permitting their small children to play in unfrequented streets, it would be the rankest kind of negligence to permit their three-year-old babies to play in streets congested with traffic, and any street temporarily torn up for repairs and improvements should be considered as a congested street. It is difficult to see how the city could have kept the child off the street when the parents, who were quite alert to the danger and prompted by their natural solicitude for their offspring, failed to do so. The mother testified:
“I went out about eight o’clock in the morning and noticed that all the ditches were filled with water. I went and got the children and brought them in. . . . Before noon I spent most of the time watching the children. Went to mother’s and took both children and when I came back brought them in the house. I brought them in whenever I found they had got out. I was baking in the afternoon and I had occasion to step into the bedroom for a minute and when I came back the child was gone. . . . The street on that block was little used for travel. There was a big rain Monday night. A rain about noon Monday started the water running in th,e gutters. We watched the children and I tried to keep them in till she slipped away. After I dressed the children that morning one went out the back way and one the fro(nt way. I brought them in, Mr. Schaubel asked why I brought them in. I said there was ditches in the street full of water, and I did not want them to get in the ditches.
“Q. Did you and your husband talk about the dangers of the children getting out there? A. Well, now I -will tell you, when I got-them dressed, it is natural for children to go out to play, for they do love qutfloors, and one went out the back door and one out the front way. I went right after them, out the front way, and Mr. Schaubel says, ‘What are you bringing them in for?’ and I says, ‘I am not going to' have them go in those ditches and drown,’ and he says, T am going to see those ditches’; and he walked out on the sidewalk and I did show him one in the parking. He put brush over it, and said he would put brush over that one, anyway, because it was so close to the house.”
*434Touching the jury’s second finding, it is not only contrary to the evidence but it is downright silly. The mother was successful in keeping the baby off the street in the forenoon, although it got out of doors several tintes and had to be brought back indoors. The parents could with diligence have been just as successful in the afternoon. They knew the child was prone to escape, and that if it did it would be in imminent danger. It should be kept in mind that this is an action by the parents, and not like that of a child for its own injuries.
Another thing: The decision in this case will do no earthly good. Not a city in Kansas will reorder its conduct on account of this decision. Does anybody suppose that because the city of Manhattan has had the misfortune to be penalized in damages for the death of a child drowned in a ditch dug in a street for the laying of water pipes, that any other city will barricade the sides of a street undergoing improvements or hire a small army of watchmen to forfend against a like mishap whenever the city is extending its water main ?
I sympathize with the plaintiffs, but the law is clearly against them. (C. K. & W. Rld. Co. v. Bockoven, 53 Kan. 279, 289, 36 Pac. 322; Railway Co. v. Young, 57 Kan. 168, 172, 45 Pac. 580; City of Chicago v. Starr, Adm’r, 42 Ill. 174; Reed v. Minneapolis Street Ry. Co., 34 Minn. 557; Beach on Contributory Negligence, 3d ed., § 131; 1 Thompson on Negligence, §§ 330-333. See, also, Ann. Cas. 1912 D, 526.)
I discern no negligence on the part of the city; the city could not reasonably have anticipated the flooding of the ditches and that a child would be drowned therein because of its parents’ failure to keep it off the street, when the parents knew the danger and feared 'the very accident which transpired. The consequence is altogether too remote to'justify the mulcting of the city i,n damages. Furthermore, I reject the doctrine to be inferred from this decision, that it is the duty of a city to make its streets at all times a safe playground for three-year-old children. But if an unfrequented street may be regarded as a playground — as a city park — then the rule announced in Harper v. City of Topeka, 92 Kan. 11, syl. ¶ 3, 139 Pac. 1018, should govern.
In writing the. opinion of the majority, although I searched diligently, I could find no analogous case with which to fortify *435it. The only one cited by the appellee, Gibson v. City of Huntington, 38 W. Va. 177, does n’t fit, and is of no value except as to the right of a child to play in an unfrequented street. That case does n’t even tell which litigant lost or won, although I glean from its discourse that the city made a successful defense.