Colebank.,v,nellie Coal &. Coke Co.

• Decision Date: 18 January 1927
• Docket Number: (C. C. No. 396.)
• Citation: 136 S.E. 512
• Court: West Virginia Supreme Court
• Parties: COLEBANK. v NELLIE COAL &. COKE CO.

136 S.E. 512

COLEBANK.vNELLIE COAL &. COKE CO.

(C. C. No. 396.)

Supreme Court of Appeals of West Virginia.

Jan. 18, 1927.

(Syllabus by the Court.)

Action by Lee R. Colebank, administrator of Donald F. Colebank, deceased, against the Nellie Coal & Coke Company, to recover for wrongful death. After sustaining a demurrer to the declaration, the trial court certified its ruling. Demurrer overruled, and case remanded.

Stanley R. Cox and Frank Cox, both of Morgantown, for plaintiff.

Glenn Hunter, of Morgantown, for defendant.

WOODS, J. Lee R. Colebank, the duly appointed and qualified administrator of Donald F. Colebank, deceased, instituted this action in case against the Nellie Coal & Coke Company, a corporation, to recover $10,000 for the wrongful death of his decedent, by reason of the gross and wanton negligence on the part of said coal company in storing powder in an unlawful and negligent manner on its properties, which were being used andhad been previously used by the public as a place of amusement, recreation, etc.—proceeding upon the theory that his decedent was an invitee, rather than a mere trespasser or licensee. The defendant interposed a demurrer to the declaration, which was sustained by the court. Said ruling is certified here for review.

The declaration consists of two counts. The first, among other material allegations, alleges that the defendant was on the 6th day of December, 1925, the date of the injury complained of, and for a long time prior thereto, the owner of a coal mine and plant together with a tract or parcel of surface land which was substantially uninclosed and open to all persons who might desire to go upon the same for amusement, recreation, play, or for other purposes; that the defendant so kept and maintained and permitted to be kept and maintained said lot or parcel of surface land as a public playground and place of amusement for the use of children and others of the community in which same is situate, in which community plaintiffs decedent resided on the date of his injury; that upon said tract or parcel of surface land there was located a certain wooden outbuilding—"commonly called a water-closet"—composed of combustible material, which building was unlawfully, negligently, and carelessly kept and maintained by the defendant for the storing of powder, and also in violation of chapter 15H, § 36A, Code; that large quantities of powder were stored therein on the date aforesaid; and that the door of said outbuilding was permitted to remain unlocked, unfastened, and unguarded and open to all persons who might desire to go into, occupy, or use the same; that the plaintiffs decedent, an infant between the age of 9 and 10 years, together with other children ranging from 8 to 12 years of age, went upon said tract of land on the 6th day of December, 1925, and into said outbuilding as aforesaid, and without knowledge or realization, because of their youth and inexperience, of the dangerous character of the powder stored in said outbuilding, removed certain quantities of said powder from said building and placed a part of said powder in the pockets of their clothing, procured a tin can and placed a quantity of said powder in said can, and placed said can on the ground about 20 feet from said outbuilding and placed a lighted match to it; that the explosion which followed ignited the powder in the pockets of said decedent and set fire to his clothing; and that said decedent died within about two days thereafter as a result of the burns sustained thereby.

The second count is practically a restatement of the material facts of the first, except it omits the statutory prohibition and that it describes the wooden outbuilding as as a—

"certain other wooden outbuilding, commonly called a water-closet, and that said outbuilding * * * at the time of the damage and injury to the plaintiff's decedent * * * was then and there and had been then and there kept, maintained, and controlled by the said defendant, unlocked and unfastened for the use of children and others who might desire to go into or use the same, of all...