Chambers v. Milner Coal & Ry. Co.

• Decision Date: 16 February 1905
• Citation: 39 So. 170,143 Ala. 255
• Parties: CHAMBERS v. MILNER COAL & RY. CO.
• Court: Alabama Supreme Court

39 So. 170

143 Ala. 255

CHAMBERS v. MILNER COAL & RY. CO.

Supreme Court of Alabama

February 16, 1905

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

Action by E. C. Chambers, administratrix of Samuel A. Paschal deceased, against the Milner Coal & Railway Company. Judgment for defendant. Plaintiff appeals. Affirmed.

This action was brought by E. C. Chambers, as administratrix of the estate of Samuel A. Paschal, deceased, and sought to recover damages for the death of the intestate, who was alleged to have been a child of 10 years of age. The complaint contained originally two counts; the first alleging simple negligence of the defendant in keeping a dangerous quantity of powder in an open, unguarded magazine, near a road in the neighborhood of the deceased, which was passed daily by a large number of people. It further alleged that the defendant knew or should have known that children would be attracted to the magazine, and that the intestate was so attracted, and lost his life by reason of an explosion of the powder in the magazine. The second count based the claim upon the willful, wanton, or intentional negligence of the defendant. To the original complaint the defendant filed four pleas; the first being the general issue, and the others contributory negligence. Afterwards the plaintiff amended her complaint by adding a third count, which was similar to the first count, except that the death of her intestate was alleged to have been caused by the ignition and explosion or burning of the powder. The defendant put in no pleas purporting to answer the complaint as amended, but for answer to the third count interposed the same pleas as had been filed to the original complaint, and a further plea, numbered 2 in the record, setting up that the magazine was on the private property of defendant and owned exclusively by it that the deceased was a trespasser thereon, and the powder was ignited by the intestate, or by a companion with his knowledge and co-operation. It at the same time filed separate pleas to the first and second counts of the complaint, being the same as filed to the original complaint with an additional plea, numbered 5, which additional plea was identical with that filed to the third count of the complaint. Demurrers were interposed by the plaintiff, the substance of which is shown by the opinion. After demurring to the second, third, and fourth pleas, as noted in the opinion, the plaintiff demurred to the second, third, fourth and fifth pleas to the first and second counts of the plea, wherein she put in the same grounds as before submitted, except that the words "plaintiff's intestate" were used in place of the word "plaintiff." The testimony tended to show: That the deceased, Sam Paschal, was about 10 years of age. That, when injured, he was playing, with a companion of about 13 years of age, at the magazine of the defendant. The door of the magazine was open, and Sam Paschal suggested that they get some of the powder and see if it would burn. They did so, and the powder burned without exploding, and set fire to other powder in the magazine, which set fire to the clothing of the deceased, from the effects of which he died that night. It was shown that some time before the powder had been so damaged from an overflow from an adjacent creek that it was nonexplosive, and merely combustible. There was much evidence bearing on the mental capacity of the deceased. Any further facts necessary to an understanding of the opinion are shown thereby. The court, at written request of the defendant, gave charges numbered and in words as follows: "(3) If the jury believe the evidence, they cannot find a verdict for the plaintiff under the second count of the complaint." "(5) If the jury believe from the evidence that Sam Paschal was of sufficient intelligence to know and appreciate the danger from a powder explosion, or the danger that would result from setting fire to this powder, and that, if set fire to, it was likely to cause death, then you must find a verdict for the defendant." "(7) The defendant had the right to store this powder in the magazine, and keep it there, and there was no absolute duty resting on it to keep it locked or guarded from access by children or others, unless the situation and surroundings would reasonably indicate to an ordinarily prudent person in charge of such magazine that it might be tampered with and ignited, so as to cause injury to children or others. The duty of the defendant in this regard depends entirely on the surrounding circumstances which may be in evidence, and of this the jury are the judges." There was judgment for the defendant, from which the plaintiff takes this appeal.

John W. Tomlinson, for appellant.

James Weatherly, for appellee.

SIMPSON J.

This was an action for the death of a boy, about 10 years of age caused by the explosion or burning of powder in a magazine. The second, third, and fourth 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 "...