59 Miss. 443 | Miss. | 1882
delivered the opinion of the court.
The plaintiff, a boy of five and a half years of age, who sues by his father as next friend, while running across an unenclosed lot in the town of Water Yalley fell into a heap of hot ashes, mingled with cinders and live coals, and was so badly burned as to be to some extent disabled for life. The ashes had been brought from the neighboring foundry of the defendants John Shaw & Son, and deposited upon the lot without any barrier of any sort being erected around them to guard against sucb accidents as befell the plaintiff in this case. This suit is brought to recover damages for the injuries sustained, upon the ground that the defendants in thus depositing their ashes, or
Are the defendants liable to one who has sustained injury by reason of the negligent manner in which the ashes were kept ? If so, it must be either on the theory that, although they had sold the ashes to one over whom they had no control, they were responsible for any negligence of their purchaser, of which they had knowledge, and which was likely to bring harm to others; or upon the other theory, that Elliott was their agent or servant in the removal of the ashes, receiving his pay in the ashes themselves, instead of in money, but none the less engaged in their work and subject to their control. The first theory is manifestly untenable. The ordinary seller of an article intrinsically dangerous, which ashes are not, is in
The case did not go off in the court below on the question here discussed. The learned circuit judge rejected the view we have expressed, but the defendants nevertheless had a verdict on grounds not alluded to by us. As his ruling on the question upon which we rest the case was favorable to the appellant, he of course did not assign error with regard to it, and, as the appellees had judgment below, they of course cannot assign error at all. Ordinarity, therefore, we would not notice it; but as it lies at the very foundation of the action, and is in our opinion absolutely fatal to it, we have passed by the errors assigned, because, no matter how they might be decided, no recovery by the plaintiff against these defendants can ever be maintained.
Judgment affirmed.