Bransom's Adm'r v. Labrot

• Decision Date: 01 March 1884
• Citation: 5 Ky.L.Rptr. 827,81 Ky. 638
• Parties: Bransom's adm'r v. Labrot, & c.
• Court: Kentucky Court of Appeals

81 Ky. 638

5 Ky.L.Rptr. 827

Bransom's adm'r v. Labrot, & c.

Court of Appeals of Kentucky.

March 1, 1884

1. As a general rule, the owner of land may retain to himself the exclusive use and occupation of it; but as property in lands depends upon municipal law for its recognition and protection, the use and enjoyment of it are subject to conditions imposed for the welfare and rights of others.

2. Appellees had possession and control of an unfenced lot in Frankfort, upon a public street, on which they had stacked a large quantity of lumber in one large and irregular pile, so negligently and badly done that as the decedent, an infant was playing near it, one of the timbers fell upon and killed him. Held:

3. That it was the duty of appellees, in placing their lumber upon the lot, to do it in such manner as to make it reasonably safe, and secure against injury to children coming on the lot and near the lumber. Failing to do so, appellant is entitled prima facie to his action against appellees for negligence.

APPEAL FROM FRANKLIN CIRCUIT COURT.

JOHN L SCOTT FOR APPELLANT.

The petition not only charges wilful neglect in general terms but goes on to specify and detail every fact that goes to make wilful negligence.

The only question is, whether section 3 of chapter 57, General Statutes-- title, Injuries to Person or Property--is operative.

Appellees undoubtedly had the right to stack their lumber upon their own lot, but in doing so, knowing that it was open to all, it was their duty so to stack it as to make it safe against injury to others. (Osborne v. Morgan, July No., 1881, Am. Law Reg.; Masterson v. N. Y. Cent. R. R. Co. Am. Law Review, July, 1881; Metzer v. Herman, S.Ct. N. Y., 1881; Baber v. Alleghany Val. R. R. Co., Albany Law Jour., July, 1881; Addison on Torts, 2 vol., 1315, vol. 1, 495; Lou. & P. Canal Co. v. Murphy, 9 Bush, 522; 15 Wall, 657; 22 Kansas, 686.)

W. LINDSAY FOR APPELLEE.

There is no pretence that the decedent was on the lot upon the invitation of appellees, or either of them. There is no claim that he was on the lot upon any business connected with appellees.

In his petition, counsel treats " gross neglect and wilful neglect" as synonymous, and we are left to doubt whether the pleader means to charge either actual malice or ante-social recklessness on the part of appellees.

No case can be found that will sustain the claim asserted by appellant. (L. & P. Canal Co. v. Murphy, 9 Bush, 522; Board Int. Imp. v. Scearce, 2 Duv., 576; Lexington v. Lewis, 10 Bush, 678; 25 Mich. 1; Thompson on Negligence, vol. 1, 303.)

OPINION

LEWIS JUDGE:

This is an action by appellant, Bud Bransom, administrator of his infant son, Bertie Bransom, deceased, brought under section 3, chapter 57, General Statutes, which is as follows:

" If the life of any person . is lost or destroyed by the wilful neglect of another person or persons, . . their agents or servants, . . then the widow, heir, or personal representatives of the deceased, shall have the right to sue such person or persons, . . and recover punitive damages for the loss or destruction of the life aforesaid."

The question on this appeal is, whether the facts stated in the petition and amended petition, to which a general demurrer was sustained, constitute a cause of action.

The statement in the pleadings is substantially as follows: Appellees, Labrot & Graham, are partners in business, and as such the owners of about 200 pieces of oak and poplar timber, each 8 feet long, from 6 to 8 inches square, and weighing from 100 to 200 pounds, which they employed and caused appellee, Shaefer, their agent and servant, to pile up on a certain uninclosed and unprotected lot of land owned by Harvie, in the city of Frankfort; that instead of stacking the timber upon level ground, and placing the pieces so as to make the entire pile safe and secure, as they should and, by ordinary care and diligence, could have done, they were, by the gross and wilful neglect of appellees, placed promiscuously in one large, irregular and dangerous pile, six or seven feet high, on a small, cone-shaped hillock, so narrow that it was impossible for the pieces nearest the ground to safely support those above them, and the top pieces being thus left without secure foundation, leaned at irregular angles, and were suspended in a dangerous condition, ready to fall at any time of their own weight; that for a period of more than fifteen years next before the life of deceased was destroyed, the public had been licensed and permitted by the owner to enter upon, use, and enjoy at will, the lot and a passway across it, from Clinton to Wilkinson street, as a common thoroughfare, upon which passway, and not exceeding forty feet from Wilkinson street, the pile of lumber was placed, causing an obstruction thereto.

It is further stated that deceased was, when he was killed, residing with his father, within less than 200 feet of the lot, and for many years a large number of small children, living near thereto, were in the habit of resorting to and playing and amusing themselves, both day and night, on the lot, and around and near the timber after it was placed there, all of which was well known to appellees before and at the time. And after it was so placed, a person residing near the lot gave notice to them of the dangerous character of the lumber pile, and requested them to make it safe, which, with ordinary diligence, they could have done; but they failed and refused to do so, and permitted it to remain in the same condition until May 12, 1881, when, without the fault of appellant or power to prevent it, or fault on the part of deceased, one of the heavy timbers fell upon his head and body, and crushed his brains out, instantly destroying his life.

To maintain an action under the section quoted, it is necessary to allege that the loss or destruction of life was caused by the wilful neglect of the party sued. But we do not agree with counsel for appellee, that because the term " gross," which signifies a less degree of negligence, is unnecessarily coupled throughout the petition and amended petition with " wilful," which signifies the degree contemplated in the section, the force or meaning of the latter is qualified or rendered doubtful.

It does not appear whether Labrot &...