Bottorff v. South Construction Company
| Decision Date | 07 January 1916 |
| Docket Number | 22,948 |
| Citation | 110 N.E. 977,184 Ind. 221 |
| Parties | Bottorff v. The South Construction Company |
| Court | Indiana Supreme Court |
From Clark Circuit Court; Harry C. Montgomery, Judge.
Action by Homer Bottorff, by his next friend Harvey Bottorff against The South Construction Company. From a judgment for defendant, the plaintiff appeals. (Transferred from the Appellate Court under § 1405 Burns 1914, Acts 1901 p 590.)
Affirmed.
Edward C. Hughes and Scott & Hauger, for appellant.
George H. Voigt, for appellee.
This action was brought by appellant seeking to recover damages from appellee for personal injuries. The court below sustained a demurrer to the complaint. The ruling on this demurrer presents the only question for our consideration. The complaint, omitting formal parts, is as follows "The plaintiff, Homer Bottorff, complains of the defendant, the South Construction Company, and says that the plaintiff is an infant twelve years of age and prosecutes this action by his father, Harvey Bottorff, his next friend. That the defendant is now and has been for more than two years last past, a corporation, doing business under the laws of the State of Indiana, and has been during said period the owner of certain real estate in Silver Creek Township, Clark County, Indiana, consisting of 25 acres more or less in Survey No. 90 of the Illinois Grant in said county. That the defendant has located on said real estate a large stone quarry, and mines and sells stone therefrom, and for more than two years last past, the defendant in operating said quarry, has maintained on said real estate a large stone crusher and an engine to operate the same, and other machinery used in the mining and manufacturing of stone; and said defendant has during said period also kept on said premises large quantities of dynamite, dynamite caps, and fuse, which are used in blasting the stone in said quarry. That said real estate, with its said machinery and quarry, is located adjacent to the town of Sellersburg, Clark County, Indiana, and there are a large number of dwellings nearby, and many children live in said vicinity. That said real estate, quarry and machinery are not fenced in, and said machinery and the noise of blasting in said quarry is attractive to children, and children living in said vicinity, with the defendant's knowledge, from time to time, congregate and play on said premises. That during said period, said defendant has kept and stored the dynamite caps, and fuse, used as aforesaid in a small wooden, shackly building on said premises, and which building had, during the month of December, 1911, and prior thereto, carelessly and negligently allowed to become dilapidated and out of repair, that is to say, said defendant had knowingly allowed several of the boards or siding on said building to become loose, and insecurely nailed on, and two or three of said boards had entirely fallen off, thereby exposing said caps, fuse and other explosives in said building to plain view, and of easy access to children attracted to said premises by said machinery and noise of blasting. That all of the foregoing facts were then and there, and during all of said time well known to defendant, and defendant knew that children were in the habit of congregating and playing on said premises.
That on the day of December, 1911, one Andrew Kock, a boy of fourteen years of age, and other boys, the plaintiff not included attracted to said premises as aforesaid were playing near to and about said building where said caps, fuse and other explosives were stored; that by reason of the carelessness and negligence of the defendant in allowing said building to become out of repair, and said boards on the side thereof to fall off as aforesaid, the said boys discovered said caps, fuse and other explosives stored in said building as aforesaid, and the said Kock boy then and there reached his hand and arm into said building, and obtained a quantity of caps, fuse and explosives, a part of which caps and explosives the said Kock carried to his home in said town of Sellersburg, and placed them in a shed near his said home; that said caps and explosives were permitted to remain in said shed at the home of Kock till December --, 1912, when said Kock obtained said caps in said shed and gave a part of them to the plaintiff, at plaintiff's home in said town of Sellersburg. That plaintiff was then about twelve years of age and had no knowledge of the use and dangerous character of said caps, nor had he then and there any knowledge or information of the dangerous composition of said caps or their use, nor of the great peril and danger incurred in handling the same, and of holding a lighted match to the shell of one of said caps, nor was there anything in the construction or appearance of said caps to cause a child of the age of plaintiff to believe there was danger in handling the same. That in total ignorance of the danger and peril of handling said caps, the plaintiff then and there held a lighted match to the mouth of one of said caps, thinking the same was an...
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