Bryan v. Stewart

Nov 4, 1915

Reporters:: , ,
Before:: McClellan

McCLELLAN, J. —

As submitted to the jury, the issues made were those tendered by the averments of *356counts 1 and 2. There is no assignment questioning rulings with respect to the sufficiency of these counts. The action is by the father (appellee) for damages consequent upon injuries suffered by his children. The plaintiff was the tenant of the defendant (appellant), and resided, with his family, on the defendant’s farm. Near by the dwelling occupied by plaintiff was a toolhouse in which the defendant had placed materials and things used about the farm. Among these things was a red box containing dynamite caps. This box was located in the toolhouse on a shelf about four feet from the floor. The ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍door to the place was not fastened. It usually remained open. The plaintiff’s evidence was to the effect that the young children of the plaintiff went upon an errand ,of the plaintiff into the shop, climbed upon a barrel, took dynamite caps from the unfastened box, and carried them home, where, later, one of them- was exploded by one of the children, inflicting injuries upon them. Such caps are highly explosive in character and quality and are very dangerous in ignorant hands. The defense was that the means of injury was something of an explosive character, but not the caps described.

(1) Under the evidence there could be no- doubt that these children were not trespassers either upon the premises on which the tool place was located or in the tool place itself. There is no suggestion that the father, the tenant, was without right to- send his children on an errand to the unfastened shop. The father’s relation to his landlord (the defendant) and to the premises was such as to render his presence there one of right and to characterize it as being by implied invitation at least and to embrace within such invitation members of his family. —Powers v. Harlow, 53 Mich. 507, 19 N. W. 257, 51 Am. Rep. 154.

*357(2) While the defendant had the right to keep upon his premises a dangerous explosive in the, perhaps, limited quantity described in the evidence, and in the exercise of that ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍right ivas not to be held to the responsibility of an insurer, yet in so doing his duty was to exercise, for the protection of those upon the premises, by invitation, express or implied, a degree of care commensurate with the dangerous quality of the explosive thus kept or stored thereon; and where, as is here shown by phases of the evidence, access to the place of storage of the explosive was unobstructed to neighboring children at play or otherwise, the duty and degree of care on the part of the owner was enhanced by the fact that children were likely to be at, or were customarily about, the place of storage. — Mattson v. Minn. R. Co., 95 Minn. 477, 104 N. W. 443, 70 L. R. A. 503, 111 Am. St. Rep. 483, 5 Ann. Cas. 498-504; Powers v. Harlow, supra. “Children,” said Chief Justice Cooley in Powers v. Harlow, a case quite similar in fact and in principle to that under consideration, “wherever they go, must be expected to act upon childish instincts and impulses; and others who are chargeable with a duty of care and caution towards them must calculate upon this, and take precautions accordingly.”

(3) From the evidence it appears that plaintiff’s children were wont to be about, or to pass a.way in close proximitey to, the toolhouse where these explosive caps were kept by the defendant, and that the defendant knew that plaintiff’s children frequented the way by the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍tool-house, and the toolhouse as well. Whether the defendant observed the requisite degree of care an ordinarily prudent person would have observed in storing these dynamite caps on the described shelf, along with rubber belts, etc., in the toolhouse, was, at the very least, under the facts of this case, a question for the jury. The court *358therefore did not err in refusing the affirmative charges requested for the defendant. The allegation of the first count that the children were upon the premises by invitation was not, as we have indicated, without support in the evidence.

(4) It is insisted in brief for appellant that the court erred in recognizing as a possible element of damages recoverable by the father the “time lost” by the father in and about nursing and caring for his injured offspring. The measure of the damages recoverable by a parent, on the account mentioned, is the value of his services in nursing and caring for his injured child. — B. R., L. & P. Co. v. Chastain, 158 Ala. 421, 48 South. 85; B. R., L. & P. Co. v. Baker, 161 Ala. 135, 49 South. 755, 135 Am. St. Rep. 118, 18 Ann. Cas. 477. (On transcript, page 3.) The insistence mentioned is rested upon the ruling of the court on a matter of evidence set forth in the first assignment of error and upon an extract from the oral charge of the court copied in the sixth assignment of error.

(5) As respects the excerpt ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍from the oral charge, it must be held that the assignment is vain because the exception to the excerpt included with that complained of entirely unobjectionable matter of instruction touching the subject of damages recoverable by a parent in this character of action. It is the obligation of the exceptor to separate the bad from the good by his exception to the oral charge of the court; and, if he does not do so, nothing for review is presented, and the court will not be held to have erred in the premises. — Marbury Lumber Co. v. Lamont, 169 Ala. 33, 53 South. 773; W. U. T. Co. v. Burns, 164 Ala. 252, 51 South. 373.

(6, 7) When the stated insistence is referred to the matter of the first assignment, it is, we think, not justified. The recitals of a bill of exceptions are construed most strongly against the exceptor. — Dickens’ Case, *359142 Ala. 51, 39 South. 14, 110 Am. St. Rep. 17; Dowling’s Case, 151 Ala. 131, 44 South. 403. Just preceding the propounding of the question set forth in the first assignment, the witness (plaintiff) had testified that the value of his services in nursing and attending to- the [injured] child was $1.50 a day. Doubtless the recitals of the bill, in this particular, are susceptible of being interpreted as having reference to the plaintiff’s loss of time; but, under the rule of construction before restated, that possible interpretation’ cannot be accepted. Furthermore, the plaintiff was entitled to be reimbursed the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍reasonable expen ses, incurred in consequence of a due prudence in the care and treatment of the child, on his trips to Birmingham where his child was being treated. — Ala. City Ry. Co. v. Appleton, 171 Ala. 324, 328, 54 South. 638, Ann. Cas. 1913A, 1181. To the question propounded to him, as set forth in the first assignment, he replied that he had made three trips to Birmingham. The subject-matter of the question was the nursing and treatment of the child, and, on its face, did not disclose with clearness its own impropriety. There was no motion to exclude the response the witness made thereto.

The errors assigned are without merit.

The judgment is hence affirmed.

Affirmed.

Anderson, C. J., and Sayre and Gardner, JJ., concur.