125 Ind. 116 | Ind. | 1890
— This is an action brought by the appellant against the appellees for damages resulting to William Pensó, an infant of the age of eight, by falling into a pit of hot ashes and burning embers while crossing the mill-yard of the appellees.
Appellees demurred to the complaint for want of facts. The court sustained the demurrer, to which ruling the ap
The complaint alleges the appellant, William Pensó, to have been an orphan about eight years of age at the time of the happening of the grievance complained of, and that for seven years prior to that time he had resided with a family in the town of Rockfield, in Carroll county, Indiana; that the appellees were conducting, and for many years had conducted, a saw-mill in said town; that the mill was situated in the most public part of the town, or village, near to a public highway and railway station, in said town; that the grounds surrounding said mill were not and never had been enclosed, and were used by the citizens of town as a passage way from one street to another, and also used for a playground for the children of said town, including the appellant, Pensó, with the knowledge, approbation and consent of the appellees; that for months immediately prior to the 21st day of May, 1887, the time of the injury to said appellant^ there was a mound on said mill-grounds from four to five feet high, made and formed by the appellees of ashes and cinders before that time accumulated at the mill and deposited on the mill-grounds, from which mound of ashes all heat had escaped, and such mound constituted a favorite play-ground for the children of the town, including the appellant, where they were accustomed to gather and play up until said 21st day of May, 1887; that upon said day, without giving any notice to the appellant, or to the public generally, the appellees excavated and removed from one side of the base of said mound about twenty bushels of ashes and filled the cavity so made with embers and cinders, hot, glowing and burning, from the fire-box of the engine; that appellees erected no barriers about the smoldering mass of embers and cinders, nor did they give any warning that it was dangerous to step upon it; that in a very short time the entire surface ceased to give out light, heat and' smoke, and
The allegations of the complaint show that the appellees, in removing the ashes, embers and cinders from their sawmill and depositing them on their uninclosed mill-yard, in a public place in the town and near to a public street, had built a mound, and that for several months prior to the time of appellant’s injuries the embers had ceased burning, and the mound had cooled and was in a safe condition to pass over, and the citizens of the town had been accustomed to pass over it for months, and during which time the children of the town, including appellant, had been accustomed to play upon the mound so built of ashes, embers and cinders ; that without any notice or warning the appellees, on the day of the injury, had excavated a hole or pit in one side of the heap or mound, and refilled it with hot and burning coals, embers and cinders, the top of which immediately cooled, and gave no signs of any change in the condition of the mound, or any warning of danger to those who had been accustomed to pass over or play upon the mound. And the question is presented whether, under such circumstances, the
As a general rule the owner of land has the right to the sole use and occupation of it, but such use and enjoyment of it must be exercised with a due regard for the public good and with a reasonable and humane regard for the welfare and rights of others.
The case of Young v. Harvey, 16 Ind. 314, was brought to recover the value of a horse killed through the negligence of the defendant. The facts were: Harvey, the defendant, commenced digging a well upon a lot owned by him; he sunk it to a depth of six feet, being forty-two inches across, and then abandoned it. It was located in an uninclosed lot, near the line of a street, in a suburb of Indianapolis. It remained a long time in this condition, sometimes partly covered with loose boards. Stock was allowed to run at large, and did run at large on the commons in the vicinity of this lot, of which the lot formed a part. On a certain day the plaintiff’s horse fell into the hole and was killed. As to whether the action could be maintained or .not the court says :
“ Whether it can be, or not, depends upon the degree of probability there was that such accident might happen from thus leaving exposed the partially dug well, considered, perhaps, in connection with the usefulness of the act or thing causing the danger. Durham v. Musselman, 2 Blackf. 96. If the probability was. so strong as to make it the duty of the owner of the lot, as a member of the community, to guard that community from the danger to which the pit exposed its members, in person and property, he is liable to au action for loss occurring through his neglect to perform that duty. We think any reasonable man, of ordinary understanding and extent of observation of the ways of life, would*120 say that the probability of injury to others, under the circumstances, from leaving the well in question in the condition it was, was not only strong, but that it amounted almost to certainty.”
The case of Graves v. Thomas, 95 Ind. 361, was brought to recover damages suffered by the plaintiff for falling into an excavation for a cellar recently made by the defendant upon a lot adjoining a street and sidewalk in the city of Terre Haute, the defendant having negligently failed to guard said excavation, or to place any signals to warn passers-by of the danger, it appearing that there had been a path diverging from the sidewalk and passing over the defendant’s lot, which had been used by persons passing along the street for a number of years. The court in that case says:
“ In the case at bar, we think that the fact that for a long period the public, using the sidewalk, had been permitted to use the place where the plaintiff fell as a part of the sidewalk, made it the duty of the defendant to guard the excavation made at that place ; and that the jury were authorized to find from the evidence that the plaintiff did not, by her own negligence, contribute to her injury.”
In Beck v. Carter, 68 N. Y. 283 (23 Am. Rep. 175), it was held that where a person for a long time allowed a portion of his lot to be used as a part of the street, and made an excavation in his lot about ten feet from the street, by which a person was injured, he was liable.
In Binford v. Johnston, 82 Ind. 426, the court says: “There are many well-reasoned cases which, carrying the doctrine still further, hold that one who places a dangerous thing in a position where it is likely to cause injuries to others, is liable to a child who is injured, although he may be a trespasser.”
In the case of Harriman v. Pittsburgh, etc., R. W. Co., 12 N. E. Rep. 451 (Ohio), it is held that where a railroad company has for a long time permitted the public, including children, to travel and pass habitually over its
In the case of City of Indianapolis v. Emmelman, 108 Ind. 530, the court says : “ The excavation into which the appellee’s son fell was made in Spruce street, at a point where it crosses Pleasant run. It was made in the bed of a shallow stream, and left alone unguarded on a July day, with knowledge that children were accustomed to play in the vicinity. The city must be held to know that children are attracted to such a place in July weather. They were not intruders. It was gross carelessness on the part of the city, with such knowdedge, to leave an unguarded pit filled with water, in the street, into which an unsuspecting child might fall.” The court, in the same case, further says: “ Conceding all that has been contended for in respect to the condition of the pit, the levee, and the street and run at the time and place of the sad occurrence, the fact remains that the city made an excavation in a street, at a place where it knew children liv
It is a well recognized doctrine that persons are required to use greater care in dealing with children of tender years than with older persons who have reached the age of discretion, and that greater care is required to avoid injury to them even when they are trespassers. Indianapolis, etc., R. W. Co. v. Pitzer, 109 Ind. 179.
The facts as pleaded in this case show that the appellees, after having created the mound of ashes upon their uninclosed lot in a public place in the town near a public street, had for months known of and permitted its use by the public to pass over from one street to another, and as a playground for the appellant, a child only eight years of age, and other children of the town, which use they had known and acquiesced in to such an extent as we think amounted to a license to such children to use the same for such purpose ; and, under such circumstances, instead of using care to avoid injury to such children, they made an excavation and filled it with hot and burning embers, the top of which being exposed immediately cooled and presented its former condition upon the surface, but underneath was a hidden mass of burning embers and fire which, under the circumstances, it was but reasonable to suppose and to anticipate that children of tender years who were, accustomed to use the same as a play-ground, and as a passage way, would enter
The court erred in sustaining the demurrer to the complaint.
Judgment reversed, at costs of appellees, and for further proceedings in accordance with this opinion.