136 S.E. 512 | W. Va. | 1927
Lee R. Colebank, the duly appointed and qualified administrator of Donald F. Colebank, deceased, instituted this action in case against the Nellie Coal Coke Company, a corporation, to recover $10,000.00 for the wrongful death of his decedent, by reason of the gross and wanton negligence on the part of said coal company in storing powder in an unlawful and negligent manner on its properties, which were being used, and had been previously used, by the public as a place of amusement, recreation, etc. — proceeding upon the theory that his decedent was an invitee, rather than a mere trespasser or licensee. The defendant interposed a demurrer to the declaration, which was sustained by the Court. Said ruling is certified here for review.
The declaration consists of two counts. The first, among other material allegations, alleges that the defendant was on the 6th day of December, 1925, the date of the injury complained of, and for a long time prior thereto, the owner of a coal mine and plant together with a tract or parcel of surface land which was substantially uninclosed and open to all persons who might desire to go upon the same for amusement, recreation, play or for other purposes; that the defendant so kept and maintained and permitted to be kept and maintained said lot or parcel of surface land as a public playground and place of amusement for the use of children and others of the community in which same is situate, in which community plaintiff's decedent resided on the date of his injury; that upon said tract or parcel of surface land there was located a certain wooden outbuilding — "commonly called a water closet" — composed of combustible material, which building *17 was unlawfully, negligently and carelessly kept and maintained by the defendant for the storing of powder, and also in violation of Chap. 15H, § 36A, Code; that large quantities of powder were stored therein on the date aforesaid, and that the door of said outbuilding was permitted to remain unlocked, unfastened and unguarded and open to all persons who might desire to go into, occupy or use the same; that the plaintiff's decedent, an infant between the age of nine and ten years, together with other children ranging from eight to twelve years of age, went upon said tract of land on the 6th day of December, 1925, and into said outbuilding as aforesaid, and without knowledge of realization, because of their youth and inexperience, of the dangerous character of the powder stored in said outbuilding, removed certain quantities of said powder from said building and placed a part of said powder in the pockets of their clothing, procured a tin can and placed a quantity of said powder in said can, and placed said can on the ground about twenty feet from said outbuilding, and placed a lighted match to it; that the explosion which followed ignited the powder in the pockets of said decedent and set fire to his clothing; and that said decedent died within about two days thereafter as a result of the burns sustained thereby.
The second count is practically a re-statement of the material facts of the first, except it omits the statutory prohibition, and that it describes the wooden outbuilding as a "certain other wooden outbuilding, commonly called a water closet, and that said outbuilding * * * at the time of the damage and injury to the plaintiff's decedent * * * was then and there and had been then and there kept, maintained and controlled by the said defendant, unlocked and unfastened for the use of children and others who might desire to go into or use the same, of all of which the said defendant then and there and during all the times aforesaid had full knowledge and notice."
The defendant contended that the plaintiff's decedent was a trespasser, or licensee, and therefore could not recover. The following cases are cited in support of its contention:Martin v. Coal Co.,
We are of opinion that each count of the declaration is good on demurrer, and we so certify.
Demurrer overruled; remanded.