Colebank v. Coal
| Decision Date | 27 November 1928 |
| Docket Number | (No. 6225) |
| Citation | 106 W.Va. 402 |
| Parties | Lee R. Colebank, Adm'r. Etc. v. Nellie Coal & CokeCompany |
| Court | West Virginia Supreme Court |
Explosives Whether Death of Child Nine Years Old Was Result of Negligence in Storing of Blasting Powder in Place Accessible to Children Held for Jury.
On the trial of an action for damages for the death of a child through the alleged negligence of the defendant in the storing of blasting powder on its premises in a place accessible to children and in the vicinity whereof children are known by officers of the defendant to congregate for play, the question of negligence of the defendant should be submitted to the jury under proper instructions of the court.
Error to Circuit Court, Monongalia County.
Action by Lee R. Colebank, administrator, etc., against the Nellie Coal & Coke Company. Judgment for defendant, and plaintiff brings error.
Reversed and remanded.
Stanley B. Cox and Frank Cox, for plaintiff in error. Glenn Hunter, for defendant in error.
This is the second time this case has been before this Court. In the first instance, the circuit court, after sustaining a demurrer to the plaintiff's declaration, certified its ruling here, and upon consideration whereof, this Court being of opinion that the declaration was good, overruled the demurrer and remanded the case for further proceedings. Colebank v. Nellie Coal & Coke Company, 103 W. Va. 15. Subsequent to the time of remanding the ease the same was put on trial before a jury, and at the conclusion of the introduction of plaintiff's testimony the court sustained a motion of the defendant to strike out the plaintiff's evidence and direct a verdict for the defendant. The plaintiff excepted to the action of the court and moved that the verdict which had been directed be set aside and a new trial awarded. The court overruled the motion and entered judgment nil capiat. The plaintiff prosecutes this writ of error.
On the 6th day of December, 1925, plaintiff's decedent, a child nine years of age, while playing on the property of the defendant, received burns from which he died on the morning of the second day following the injury. This suit is by the administrator to recover from the defendant damages for the alleged wrongful death of the decedent. The defendant was engaged in conducting a coal mining operation on a tract of approximately 293 acres of land which it owned in Union district, Monongalia county. This property was uninclosed, and there were thereon at least two distinct locations where children of parents residing on the property and neighboring children were accustomed to play. The deceased child lived with its parents on the father's property just across the road from defendant's property herein discussed. The father was an employee of defendant and worked at a tipple some distance away. Numerous witnesses testify that repeatedly they saw groups of children ranging in number from four or five to two dozen or more engaged in play on these premises; that their presence was to be noted almost daily in weather which was suitable for out-door recreation, and that this use of the property by children for play had continued not only from the time that the defendant had acquired its deed for the property in 1923, but prior thereto. The two sections of the property to which the children usually went for play had been used by them to such an extent that paths had been worn between bases where they played ball so that "baseball diamonds" appeared clearly marked on the ground. The girls as well as boys played there. Other games, such as tag and hide and seek were played by the children. This use of the property was known to the officers and agents of the defendant and no protest against the same had ever been made.
About six hundred feet from one of the playgrounds and about three hundred feet from the other one was located a small frame building which had originally been constructed for an outhouse or privy, but had not been much used in the last year or two before the accident here involved for the purposes for which it had been erected, though there is evidence that it was occasionally used for that purpose. A little more than a year prior to the date of the accident, * employees of the defendant placed in this outbuilding several cans of rock powder, or giant powder, apparently six cans, though one witness thinks there were nine. When the powder was first placed in this little building, a wooden bar was nailed across the door, but it appears from the evidence that during at least the latter part of the year just preceding the accident, this bar had been torn away or removed and the door stood open a large part of the time, if not, in fact, all the time. At the time of the accident one of the cans of powder was open and had been open for a considerable period of time. Who opened it does not appear. On the day of the accident the plaintiff's decedent and three other small children of about his age went to the little outhouse to get a whip that one of the children had left there earlier in the day, and while there they put some of the powder in their pockets, and one of the children put some of it into a can; they then went some little distance from the building where they placed the can on the ground and applied a lighted match; nothing happening immediately, the children circled around close to the can to see what was the trouble. A frightful disaster followed. The explosion of the powder in the can ignited the powder in the pockets of the clothing of the children with the result that two of them were fatally burned and the other two were seriously injured.
In justification of the action of the trial court in striking out the plaintiff's testimony and directing a verdict for the defendant, it is said that the children were trespassers or mere licensees, and that the defendant owed them no other duty than not wantonly to injure them, and that there being no evidence of wanton injury there was in the case no basis on which a verdict should be predicated against the company and therefore under well recognized rules of procedure, it was the court's duty to take the case from the jury.
This is a question of negligence which cannot be solved by determining whether on the occasion of the accident the children were mere licensees, trespassers, or were invitees. If it is to be said as a matter of fact that by reason of the long use of the premises by the children for purposes of play, with at least the tacit consent of the officers and agents of the company, there was an implied invitation to the children to use the premises for play, then the company owed to the children a very high degree of care for their safety. Diotiol- iavi v. Coal Company, 95 W. Va. 692, 697, and authorities cited. On the other hand, if it is to be said on the facts that there was no implied invitation to the children to use the property for play and that the children were mere licensees or trespassers, it does not follow as a matter of law that the company owed no other duty than not wantonly to injure them. An owner of land owes some duty even to trespassers. He may not...
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