
    McGRAW v. THE DISTRICT OF COLUMBIA.
    Public BathingBeach; Deathby Wrongful Act; Administration.
    1. Quaere, whether the act of Congress of September 26, 1890, establishing a free bathing beach on the Potomac river in this city, imposes upon the District of Columbia a munici- ' pal obligation, from which a liability may accrue for the death of persons using the beach.
    2. A person using the beach before passage of that act was a trespasser, for whose death by drowning the District is not liable; and the presence of a policeman there, who allowed boys to go in bathing without objection, and notice in the public press that the beach was ready for use, are not circumstances from which a license from the municipality to the public to use the beach, can be inferred.
    3. Quaere, whether an action by an administrator, the father of the decedent, to recover the value of the services of decedent, and for funeral expenses, is within the meaning of the act of Congress of February 17, 1885 (23 Stat., 307,) authorizing suits for' damages where death results from wrongful act.
    No. 302.
    Submitted May 25, 1894.
    Decided June 4, 1894.
    
      Hearing on a bill of exceptions taken by the plaintiff in an action' for damages for death by alleged wrongful act.
    
      Judgment affirmed.
    
    The Court in its opinion stated the case as follows:
    By an act of Congress approved September 26, 1890, entitled “An act establishing a free public bathing beach on the Potomac River, near Washington Monument,” it was provided as follows:
    “ Be it enacted, &c., That the Commissioners of the District of Columbia are hereby authorized and permitted to construct a beach and dressing-houses upon the east shore of the tidal reservoir, against the Washington Monument grounds, and to maintain the same for the purpose of free public bathing, under such regulations as they shall deem to be for the public welfare; and the Secretary of War is requested to permit such use of the public domain as may be required to accomplish the object above set forth.
    “ Sec. 2. That the sum of three thousand dollars is hereby appropriated from the revenues of the District of Columbia, to be immediately available for the purposes of this act.” (26 Stat., 490.)
    The Commissioners of the District had given their approval to the measure in advance upon reference of the bill to them by Congress; and the beach and bath-houses were thereupon constructed, under the superintendence of William X. Stevens, the enthusiastic person who had procured the enactment of the law, and were thrown open to the public on the 7th day of September, 1891. Four days before this last mentioned day, namely, on the 3d of September, 1891, Harry Leo McGraw, a boy of the age of 13 years and five months, together with a number of other boys, stated to have been about 75 in all, went in to swim at the beach. McGraw went in about 11 o’clock in the morning, and remained in the water until about 1 o’clock in the afternoon, when he was drowned. It is testified that he was unable to swim, although he went in near where there was a springing board for diving, which indicated deep water; and the body was found on the next day in deep water not far from the end of the springing board, where he seems to have gone down. There was a policeman on duty at the beach; but it does not appear that he saw McGraw go into the water, or had observed his movements at all. But few, if any, of the bath-houses were open; and McGraw, as well as some of the other boys, undressed in the weeds. One of the witnesses testified that he himself asked the policeman whether it was permitted to go in that morning, and that the officer replied that those who had bathing suits might go in. It does not appear whether young McGraw had a bathing suit or not.
    The immediate cause of the drowning was that there was a deep gully at the place where the ground under the water shelved very suddenly, and there was a steep and dangerous descent. There were no lines at that time to mark the limits of the beach.
    This suit was thereupon instituted by James Leo McGraw, the father of the unfortunate boy, as administrator of the deceased, to recover damages from the District of Columbia for the loss of the services of his son, for the funeral expenses of the latter, and for expenses incurred in curing the boy’s mother, the wife of the plaintiff, of ill health resulting from the drowning of her son. At the trial, the plaintiff adduced testimony to prove the facts hereinbefore stated, and others not deemed important to be here specified. Besides this, there was proof that the boy had earned some money, which he gave to his mother for the support of the family; that he was a strong and healthy boy at the time of his death; and that his funeral expenses amounted to something upwards of $100. There was no proof offered of any expenses incurred, as alleged, in consequence of the ill health of the plaintiff’s wife resulting, as claimed, from the death of the son; and it would have scarcely served any useful purpose to adduce such proof, notwithstanding the allegation of the fact in the declaration.
    No proof was offered on behalf of the defendant. But defendant’s counsel, upon the close of the plaintiff’s case, prayed the court to instruct the jury to return a verdict for the defendant, on the twofold ground that the District was not liable in the case as matter of law, and that the ill-fated boy, on account of whom the suit had been instituted, had been himself chargeable with contributory negligence. The court gave the instruction, over the plaintiff’s objection; and the jury rendered their verdict in accordance therewith, upon which there was judgment for the defendant. From this judgment the plaintiff has appealed.
    Two questions are suggested by the bill of exceptions and the assignments of error: i. Whether there was any liability in this case on the part of the District of Columbia to the plaintiff; and, 2. Whether there was contributory negligence on the part of the deceased.
    
      Mr. Jackson H. Ralston and Mr. Frederick L. Siddons for the plaintiff in error.
    
      Mr. S. T. Thomas, Attorney for District of Columbia, and Mr. A. B. Duvall, Asst. Attorney, for the defendant in error.
   Mr. Justice Morris

delivered the opinion of the Court:

1. It may well be doubted whether the act of Congress that has been cited in this case was intended to impose any duty upon the District of Columbia, such as is sought to be enforced in the present suit. The act is permissive in its character^ and not .mandatory. It is not mandatory either upon the Secretary of War to permit the use of the public grounds for the purpose in question, or upon the Commissioners of the District of Columbia to carry the purpose into effect. And even if it should be assumed that there was a duty imposed by it, from which a liability might accrue, it is not at all clear that the District of Columbia is chargeable with that duty, which was laid by express terms, not on the District as a municipality, but upon the Commissioners of the District as a superadded obligation.

But however this may be — and we desire not to be understood as distinctly deciding this point — we cannot accept the theory that the municipality, even if the duty had been imposed upon it of establishing and maintaining this beach, can be held responsible for its safety, and the safe use of it by those who are likely to have recourse to it in the same manner as streets and highways are to be rendered safe, or even as parks and grounds kept for entertainment and amusement, without direct profit or advantage to the municipality, might have to be maintained in a condition of safety. Land covered by water is necessarily more or less beyond the ordinary control of man; and the margins of streams, rivers and lakes, as well as of the ocean, are subject to a power which the ordinary operations of man may neither determine nor direct. To hold that the margin of a great river, with the mighty volume of water that constantly comes down to disturb its configuration, should be kept level and smooth, free from holes and depressions, and equally safe for the use of adult man and the child of tender years, would be to demand the impossible. It is common experience that the bed of a river is in course of constant change; and that in places the sand and earth are accumulated, in other places excavated or depressed and holes and ravines formed even in a single night. It cannot be that there is any duty imposed upon the municipality that charges it with knowledge of these mutations and requires it to warn the public against them. Neither do we understand that, in the establishment of a free bathing beach, there is any duty imposed upon it to mark in any way the depth or relative depth of the water, so as to guard the ignorant bather from venturing too far. This is a case in which the bather must rely upon his own senses and his own caution; and he has no right to have the municipal authority substituted for the exercise of his own judgment.

If there was a duty imposed in this instance upon the municipal authorities of the District of Columbia, it was: 1st. “To construct a beach and dressing-houses”; and, 2d. “ To maintain the same.” These are the terms used in the statute., Now, towards individuals certainly no liability could accrue under the statute until the municipality had completed the work of construction, and thrown the beach open to the public for the uses contemplated.' No one was entitled to use this beach as a bathing beach, so as to hold the municipality liable for any negligence in its construction, if any such there was, until in some manner the municipality made known to the public that the work was completed and invited them to the use of it. By the testimony uncontro-verted and undisputed of the plaintiff’s own witness, the beach was not thrown open to the public until the 7th day of September, 1891; and the misfortune that deprived this boy of his life occurred on the 3d day of September, 1891. The boy was there furtively, as a trespasser, without invitation and without right, so far as the municipality was concerned; and it would be the grossest injustice to hold the latter responsible for an injury which it did not occasion and against which, in the nature of things, it could not have guarded. This circumstance we regard as decisive of the case, and conclusive against the plaintiff’s right to recover.

But it is argued in the face of this direct and positive testimony given by the plaintiff’s own witness, that there are other circumstances from which the jury might properly have inferred a license from the municipality to the public to use the bathing beach even before the 3d of September, 1891, such as the presence of a policeman there, the fact that many of the boys were permitted to go in without objection, the statement of the policeman that those boys might go in who had bathing-suits, and the statement of the boy’s father, the plaintiff in this case, that “he had not made any personal examination of the beach to see if it was safe, and only knew about it from the fact of reading in the ‘ Star ’ that it was open; they advertised that it was open.” But we cannot regard the detail of a policeman to be present to preserve the peace and good order of a place where it was known that boys and young men were in the habit of congregating and had probably congregated for half a century and upwards, as any evidence whatever that the municipality had complied with the provisions of an act of Congress, and was prepared to incur liability to the amount of $10,000 to every individual that thought proper to go into-the Potomac River at that point. And of course the statement of the plaintiff as to what he saw in the “Star,” or thought he saw there, cannot be accepted for a moment as testimony in this case. There is absolutely no testimony whatever and nothing to go to the jury, with reference to the time at which this beach was opened to the public, and the liability of the District for its safe condition began, if it ever began, other than the statement of the plaintiff’s witness, Stevens, who had the best opportunity possible to know, as he was the originator of the scheme and the superintendent of the work, that it was not thrown open to the public until the 7th of September. And as we have said, this statement is, in our opinion, conclusive of the plaintiff’s case.

2. We do not consider that the question of contributory negligence arises in this case, inasmuch as we find no evidence of negligence on the part of the defendant. The accident was the result wholly either of the boy’s own recklessness, or was his misfortune — most probably the latter.

3. It seems important to us that we should not fail to notice another question that is involved in this case, although no point was made of it in the court below, and none was made in argument before us. This suit is instituted under the provisions of the act of Congress of February 17, 1885 (23 Stat, 307), entitled “An act to authorize suits for damages where death results from the wrongful act or neglect of any person or corporation in the District of Columbia,” which is one of the numerous statutes, now believed to be quite general in this country, based upon what is known as Lord Campbell’s Act in England. We greatly doubt whether this statute authorizes such a suit as that which we have before us here. The statute evidently contemplates actions for the benefit of those who have been deprived of the protection and support of husbands, parents and others standing in analogous relations, and was scarcely intended to include administration upon the estates of children and suits by such administrators. The earnings, present and prospective, of the boy in this case belonged in law to his father, as such, and not to any administrator; and the expenditure for his funeral was an expenditure incumbent on the parent for which that parent might sue the wrongdoer who caused the. death, if such there was. It is unneces-sar}r for us to decide this question here; and we do not decide it. But we do not wish it to be passed in silence in such manner that the case may hereafter be cited as a precedent on that point.

From what we have said, it results that the judgment of the court below must be affirmed, with costs; and it is accordingly so ordered.  