Coeur d'Alene Lumber Co. v. Thompson

Decision Date11 May 1914
Docket Number2326.
Citation215 F. 8
PartiesCOEUR d'ALENE LUMBER CO. v. THOMPSON.
CourtU.S. Court of Appeals — Ninth Circuit

O. J Thompson, the plaintiff in the court below, is a citizen of the state of Idaho. The Coeur d'Alene Lumber Company, the defendant in the court below, is a corporation organized and existing under and by virtue of the laws of the state of Washington. In the complaint of the plaintiff, as originally filed, it was alleged that for some time prior to the 1st day of June, 1911, the defendant had owned, operated, and maintained a sawmilling and woodworking plant, located upon its lands in the city of St. Maries, in the state of Idaho that as part of the plant the defendant had caused to be excavated a certain cistern or well, which was used by it for the storage of water in connection with its milling plant that some months prior to the 1st day of June, 1911, the defendant caused all of its buildings, machinery, and appliances to be moved from its lands in the city of St Maries, but carelessly and negligently failed to fill up or cover the cistern or well excavated by it, and carelessly and negligently permitted the cistern or well to remain open up to and including the 1st day of June, 1911; that on that date the cistern or well had become filled with water to a depth of about 10 feet, and had become extremely dangerous to children of tender years and to others who had occasion to go upon the premises, either for business or for pleasure, and the lands maintained as aforesaid by the defendant had become and were dangerous premises; that for many months prior to the 1st day of June, 1911, the minor son of the plaintiff, Bernarr Thompson, with numerous other children living in the city of St. Maries, had frequently and habitually gone upon, over, and across the lands and premises of the defendant to the vicinity of the cistern or well for the purpose of play and amusement, all of which was known by the defendant, or could have been known by it in the exercise of reasonable care, and ought to have been and was anticipated by it and its agents and servants; that the dangerous condition of the premises of the defendant, and the danger of small children falling into its cistern or well and becoming drowned, and the habitual use of the premises by Bernarr Thompson and other companions and children of tender years, was open and notorious up to the time of the death of said Bernarr Thompson, and was well known to the defendant; that on account of the tender years of Bernarr Thompson he did not know or appreciate the dangerous condition of the premises of the defendant; that on the 1st day of June, 1911, Bernarr Thompson, in company with other children, were playing in, about, and upon the premises of the defendant, and close to and in the immediate vicinity of the cistern or well excavated by it, which at that time was filled with water up to and on a level with the ground; that said Bernarr Thompson, while so playing therein and thereabout, accidentally and inadvertently fell into the cistern or well and was drowned; that the negligence and carelessness on the part of the defendant in failing and neglecting to fill up or cover the cistern or well which had been excavated by it was the proximate and sole cause of the death of Bernarr Thompson.

The defendant demurred to the complaint, on the grounds that it did not state facts sufficient to constitute a cause of action against the defendant; that it was uncertain, unintelligible, and ambiguous, in that it was not alleged therein, and did not appear therefrom, how long prior to the 1st day of June, 1911, the defendant had owned, operated, and maintained the sawmilling and woodworking plant mentioned in the complaint; that it did not appear in the complaint how long prior to the 1st day of June, 1911, the defendant had caused all of the buildings, machinery, and appliances mentioned in the complaint to be removed from its lands; and that it did not appear from the complaint in what manner the defendant had recklessly, negligently, and carelessly maintained the well and cistern mentioned in the complaint. The demurrer was overruled by the court below.

In the answer filed by the defendant all of the allegations of the complaint were denied, and as matter of affirmative defense the defendant alleged that at all of the times mentioned in the complaint it had been the owner of the N.E. 1/4 of the N.E. 1/4 of section 27, township 45 N., range 2 W., Boise meridian, in Kootenai county, in the state of Idaho; that on the 14th day of September, 1907, the defendant entered into a written contract with a certain copartnership doing business under the firm name of Schmidt Bros., to manufacture into timber and lumber for the defendant all of the logs then being on the lands above described and owned by the defendant; that thereupon Schmidt Bros. erected a sawmill on the lands of the defendant, and engaged in manufacturing lumber for the defendant, pursuant to the terms of the contract, up to and including the month of October, 1908; that in the operation of the sawmill by Schmidt Bros., and without the knowledge of the defendant, sawdust accumulated in piles adjacent to the sawmill; that back of the sawmill there was a small ravine, which sloped from a hillside toward the millsite of Schmidt Bros.; that water flowed through the ravine and terminated at the piles of sawdust into a small pool or sink, forming a pond about 25 or 30 feet long and about 12 or 15 feet wide; that the pool or pond was off and out of the way of any public highway; that at all times mentioned in the answer the pool or pond remained open, uninclosed, and uncovered, and that it was caused by Schmidt Bros. leaving upon their millsite piles of sawdust, against which the waters in the ravine flowed, stood, and remained; that, if any well was dug by Schmidt Bros. upon the premises, the defendant had no knowledge thereof. The defendant further alleged in its answer that the plaintiff knew of the existence of the pool or pond of water, and knew that his minor son was in the habit of going upon the premises, and that the carelessness and negligence of the plaintiff in failing to exercise due care, control, and supervision over his minor son, and in omitting to restrain and prevent him from entering upon the premises of the defendant, were the proximate causes of the death of his son.

At the close of the plaintiff's testimony the defendant moved the court for a judgment of nonsuit in its favor and against the plaintiff. The motion was based upon the grounds that the evidence was insufficient to warrant or justify a verdict in favor of the plaintiff and against the defendant, that the testimony in the case failed to prove that the minor son of the plaintiff was drowned by reason of any negligence or carelessness on the part of the defendant, and that the testimony showed that the plaintiff was guilty of contributory negligence in permitting his minor son to play in and about the sawdust piles, and the well or pool of water, on the defendant's land. The motion for a nonsuit was denied.

At the close of the testimony the defendant renewed its motion for a nonsuit, together with a motion for a directed verdict in its favor, on the grounds theretofore urged by it in support of its motion for a nonsuit made at the close of the plaintiff's testimony, and in addition thereto on the further grounds that the testimony showed that the well or cistern was not dug by the defendant, but was dug by Schmidt Bros., as independent contractors, that at the time the well or cistern was dug the contractors were operating a sawmill of their own upon the premises described in the complaint, and that the defendant had no interest in the ownership of the plant and did not participate in the operation thereof. The motions for a nonsuit and for a directed verdict were denied.

The jury returned a verdict in favor of the plaintiff for the sum of $2,500. From the judgment entered thereon the defendant sued out a writ of error from this court.

McFarland & McFarland, of Coeur d'Alene, Idaho, and Charles L. Heitman, of Spirit Lake, Idaho, for plaintiff in error.

W. H. Plummer and Joseph J. Lavin, both of Spokane, Wash., and Whitla & Nelson, of Coeur d'Alene, Idaho, for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW Circuit Judge (after stating the facts as above).

1. The defendant has assigned as error the order of the trial judge overruling the demurrer interposed by it to the complaint of the plaintiff. By section 4228 of the Code of Civil Procedure of the state of Idaho, it is provided that 'a demurrer is not waived by filing an answer at the same time. ' It is contended that under this statute the filing of an answer in the United States court did not waive the objection to the complaint raised by the demurrer. The objection was that the complaint did not state facts sufficient to constitute a cause of action: First, because it was alleged in the complaint that the dangerous condition of the premises of the defendant, and the danger of small children falling into the well or cistern and being drowned, and the habitual use of the premises by the minor son of the plaintiff, and other children of tender years, was open and notorious up to the time of the death of the plaintiff's son; second, because the complaint was uncertain, unintelligible, and ambiguous in that it was not therein alleged how long prior to the 1st day of June, 1911, the defendant had owned, operated, and maintained the sawmilling and woodworking plant mentioned in the complaint, and, further, that it did not appear from the complaint how long prior to the 1st day of June, 1911, the defendant had caused all of the buildings, machinery, and...

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