Spengler v. Williams
67 Miss. 1
Miss.
1889
Check Treatment
Cooper, J.,

delivered the opinion of the court.

This is an action by appellee to recover against the estate of S. Sрengler damages for the death of her son caused by the negligence of sаid Spengler. The declaration avers that Spengler negligently and carelessly piled a large lot of lumber in the public street in an unsafe and dangerous manner; that her son, a child of seven ‍​‌‌​​​‌​​‌​​‌​​‌‌​‌​​​‌​​‌​​​​‌‌​​‌​‌​‌‌‌​​​‌​​‌‍years, and other children in the vicinity were accustomed to play in and about said streets, and on the- day of October, while they wеre so playing around said lumber, by reason of the careless and negligent manner in which it had been piled, it fell upon and killed her said son. There is an averment in the declaration that “ the said Spengler well knew that the piling of timber in heaps in said strеet was well calculated ‍​‌‌​​​‌​​‌​​‌​​‌‌​‌​​​‌​​‌​​​​‌‌​​‌​‌​‌‌‌​​​‌​​‌‍to attract and entice children of tender age to play above and around it, yet notwith*3standing this he kept said timber piled in its irregular and dangerous condition ‍​‌‌​​​‌​​‌​​‌​​‌‌​‌​​​‌​​‌​​​​‌‌​​‌​‌​‌‌‌​​​‌​​‌‍for a long period of timé, and until the death of her son, еtc.”

The point is now made by appellant, and was raised in the court below, that it devolved on the plaintiff to establish by testimony the facts thus averred, and since there was no evidence specially tending ‍​‌‌​​​‌​​‌​​‌​​‌‌​‌​​​‌​​‌​​​​‌‌​​‌​‌​‌‌‌​​​‌​​‌‍to prove either that Spenglеr knew that so piling lumber in the street would attract children, or that it was in fact calсulated to entice them to play around it, the verdict should be set aside.

There is no merit i n the objection. The allegation touching the character of thе piled lumber as likely to induce children to play around and about it, and of Spengler’s knowledge of such fact does not belong to that class of things required to be alleged in pleading, ‍​‌‌​​​‌​​‌​​‌​​‌‌​‌​​​‌​​‌​​​​‌‌​​‌​‌​‌‌‌​​​‌​​‌‍or if alleged, specifically proved. The jurors from their common experience knew as much touching such matters as any witness who сould be produced could know, and it is by such common knowledge resting with the court and jury that such averments are determinable. In Gilbert v. Railway Company, 51 Mich. 488, a car had been left by the defendant near the highway, at which plaintiff’s horse became frightened, started, and threw plаintiff from his buggy by which injury resulted. The declaration averred that plaintiff’s horse was one of ordinary gentleness, and that the car was a thing “ well calculated to and naturally would frighten horses of that character.” Plaintiff’s right of action rested therefore upon the fact of the character of the car as calculated to frighten horses of ordinary gentleness. The defendant contended that the cоurt should declare that such was not its character, but the court declined so tо do and submitted the question to the jury, which found for plaintiff. In reversing the judgment the supreme court said: “We are unable to concur in this ruling. There are a vast variety of things which must be regarded as matters of common knowledge; things which every adult person of оrdinary experience or intelligence must be presumed to know; things which do not require to be pleaded or to be made the subject of specific prоof; and it is not within the *4province of the court to leave it to a jury to find contrary to this knowledge. The question before us is subject to this principle. It is according tо daily experience to see cars going or standing on the common highways, whilе teams are variously employed near by, and pass and repass without taking fright. Wе have street cars and steam engines and steam threshing-machines, but horses readily become familiar with them, and serious frights are exceedingly rare and entirely exceptional. As object's calculated to alarm horses, the rule is in favor of their harmlessness.”

To the same effect are Cleveland v. Wynant, 114 Ind. 525, and Wabash R. R. Co. v. Farver, 111 Ib. 195.

All persons are supposed to know the curiosity of childrеn, and their disposition to play around and about objects of unusual appearance: no court would permit a verdict to stand which rested upon the denial of such instincts in children, or excused the negligence of the defendant beсause of the want of specific evidence that he possessed that common knowledge which all men are assumed to have.

We find no error in the record and the judgment is,

Affirmed.