Chambers v. Milner Coal & Railway Co.

SIMPSON, J. This was an action for the death of a boy, about ten years of age, caused by the explosion, or burning, of powder in a magazine. The 2nd, 3rd and 4th pleas set up the defense of contributory negligence in the intestate, and demurrers were interposed to said pleas, assigning, among other causes, “That it is not averred that the plaintiff had sufficient discretion,” etc., and “That the plaintiff was about the age of ten,” etc., and in each cause of demurrer refers to the “plaintiff.” As the plaintiff, in this case, is E. 0. Chambers, as administratrix, and there was no necessity of any such allegations as to her, the demurrers were properly overruled. The overruling of the demurrer to pleas 2, 3, 4 and 5, to the first and second counts of the complaint, ivas error without injury, as the plaintiff got the full benefit of the principle claimed, as to the necessity of alleging and proving the requisite intelligence of the child, before it could he guilty of contributory negligence, in the charge of the court. As to the demurrer to the “Fifth plea of defendant to 2nd and 3rd counts of the complaint as amended” we do not find any such plea in the record, and, at any rate, the only 5th plea, which is in the record, contains a correct statement of the law. Taking up the exceptions to the action of the court in giving charges at the request of the defendant, in the order presented in appellant’s brief, charge No. 5, requested by defendant, was. properly given. If an adult-had acted as plaintiff’s intestate did, he would certainly have been guilty of contributory negligence, and the charge simply left it to the jury to determine whether or not the said intestate was possessed of sufficient- intelligence to be guilty of contributory negligence. There was no error in giving charge No. 3, requested by defendant. In addition to the fact that plaintiff had taken issue on the plea of contributory negligence to the second count of the complaint, there is no evidence [260] tliat “Said defendant wilfully, wantonly, or intentionally, and, with a reckless disregard of human life, left said magazine open and unguarded with a dangerous amount of powder therein and thereabout.” The magazine was built of brick and stone, in the woods, not in any populous community. The evidence does not show that any great number of people ever passed by it. The road was from 50 to 75 yards away, according to estimate, and 150 yards by measurement, while a path which passed within 6 feet of it was seldom traveled. No reason is shown why children should wander there more than to any other place in the woods. The powder that was in it was caked, from having been overflowed by the creek, and, when set on fire this time, merely burned slowly without exploding, and the child’s clothes caught fire, because he was standing in the dopr. The same accident would be just as likely to occur in the barn filled with hay, under the same conditions. So that the powder in this place was merely combustible and not a dangerous explosive. The appellant, in his brief, next claimed that the court erred in giving charge No. 6, requested by defendant, but there is no assignment of error as to charge 6, nor do we find any charge in the record. There was no error in giving charge No. 7, requested by defendant. It has been held by this Court and others and is consonant with reason, that, while it is true that “Keeping explosive substances in large quantities in the vicinity of dwelling houses or places of business is ordinarily regarded as a nuisance,” yet the opinion goes on to state “Whether so or not being dependent on the locality, the quantity, and the surrounding circumstances. But negligence, or want of ordinary care, in the manner of keeping, or in keeping large quantities, is requisite, to impose a liability to answer in damages occasioned by an accidental explosion or fire, which it is encumbent on the party affirming to prove.”- — Cook v. Anderson, 85 Ala. 105; Collins v. A. G. S. R. R., 104 Ala. 391, 398. And again, in a case where this Court failed to sustain an action against a street car company, in behalf of a child, under the age of seven, because the care were not [261] sufficiently guarded to prevent a trespassing child from getting on and off the same, the Court quotes with approval, from Elliott on Railroads, § 1259, “That, although the age of the child may be important in determining the question of contributory negligence, or the duty of the company after discovering him, the company is, in general, no more bound to keep its premises safe for children who are trespassers, or bare licensees, not .invited or enticed by it, than it is to keep them safe for adults,” and this Court goes on to say, “Ordinarily a man who is using his property in a public place is not obliged to employ a special guard to protect it from the intrusion of children, merely because an intruding child may be injured by it.” — Jefferson v. Birmingham Ry. Elec. Co., 116 Ala. 294; see also N. C. & St. L. Ry. v. Harris, in MS. The storing of large quantities of gun powder or dynamite in a wooden building within tire corporate limits of a thickly .settled town, and in proximity to many buildings, constitutes a nuisance, but if the explosives are not kept in such quantities, and at such a place and under such surrounding circumstances, there must be shown some special negligence in the manner of keeping them. — Rudder v. Koopman, 116 Ala. 332. In the strongest case, in favor of the liability of the owner of premises for injury to a child, which has come to our notice, the child was the son of a tenant, who- had a right to go over the premises, and the dangerous explosive was a dynamite exploder, which any one might mistake for a harmless article which was left in the middle of the field under a shed, to which the laborers resorted in case of storm. — Powers v. Harlow, 53 Mich. 507. In the present case the magazine being situated and conditioned as before stated on private premises not really containing an explosive, charge No*. 7 was certainly not too favorable to* the defendant. The charge mentioned as having been requested by the plaintiff, and refused, does not appear in the bill of exceptions, hence, under the repeated rulings of this Court, cannot be considered. [262] For reasons hereinbefore stated, there was no error in the refusal of the court to grant the motion for a new trial. The judgment of the court is affirmed. McClellan, O. J., Haralson, Tyson and Anderson, J.J., concurring.