Drew v. Lett

• Decision Date: 06 October 1932
• Docket Number: No. 14587.,14587.
• Parties: DREW v. LETT.
• Court: Indiana Appellate Court

95 Ind.App. 89

182 N.E. 547

DREW

v.LETT.

No. 14587.

Appellate Court of Indiana, in Banc.

Oct. 6, 1932.

Appeal from Pike Circuit Court; John L. Sumner, Judge.

Suit by Joseph Drew against Emry Lett. From the judgment for defendant, plaintiff appeals.

Reversed, with instructions.

F. A. Seal, of Washington, Ind., and Wm. D. Curll, of Petersburg, for appellant.

Allen, Hastings & Allen, of Washington, Ind., for appellee.

WOOD, C. J.

Appellant brought suit against appellee by a complaint in one paragraph to recover for damages suffered from the death of his infant son 11 years old, as a result of the alleged negligent conduct of appellee. A demurrer for want of facts was sustained to the complaint. The ruling on the demurrer is the only error assigned for consideration.

The complaint, omitting the formal parts thereof, is in the following language:

“The plaintiff complains of the defendant and alleges that on the 13th, day of June, 1931, and for a long time prior thereto, the defendant was and had been in possession, management and control of a certain 20-acre tract of land. (Describing it) That at and during said time there was an abandoned coal mine located on said real estate known as Green Mound Coal Mine. That said coal mine is located adjacent to the Big Four Railroad and on the north side of said tract of ground, and is about fifty feet in depth. That there is an entrance to said coal mine by what is known as a manway, which extends and slopes from the surface of the ground to the bottom of the mine, and that said manway was equipped with a winding stairway that is made up of flights consisting of about five steps each, with a small landing at the bottom of each flight, and the same was used as an egress and ingress for the coal miners to go to and from the bottom of said coal mine; that over the entrance of said manway was a small frame shed about six feet square and ten feet high and that on the north side thereof was a wooden door about five feet high and two and one-half feet wide, and that this was the only entrance to said manway from the surface of the ground.

“That at said time there was a railroad switch leading to said mine, and there were a number of open and vacant buildings surrounding the same, wagon roads and towpaths were leading to and from the mine and vicinity of the said manway; the grounds surrounding the mine were level and open and that these environments made the said grounds about said mine and manway an inviting place for children to play, and that the children of the neighborhood living near said mine did play there, with the knowledge, approbation and consent of the defendant.

“That on said 13th. day of June, 1931, and for more than a year prior thereto, said coal mine had been abandoned and no person or persons were working in or about the same, except the defendant, who frequently worked at and about said mine and manway, engaged in tearing down the tipple of said mine, in tearing down and removing parts of other buildings there, and in cleaning up the grounds around said mine and manway; that by reason of the abandonment of said coal mine, and the nonuse thereof, gases were formed and stagnated and poisonous gases were created and collected in the month of said manway known as the ‘damps'; that the presence of said poisonous condition of the air and of the ‘damps' in said manway could not be seen or ascertained, but that the same was fatal to any human being who came in breathing contact therewith.

“That the door of said shed over the entrance of said manway was on the 13th, day of June, 1931, and for many months prior thereto, left open, and the entrance to said stairway and the mouth of said manway exposed to the danger of children entering the same while playing about said mine grounds and premises; that no notice or warning of any kind had been given by the defendant of the dangers thereof, and that no guards or barriers had been made or established to keep children from entering said door to said shed and manway.

“That the defendant knew of the location of said manway, of the frame shed over the same, of the open door to said shed, of the poisonous air, and of the ‘damps' in said manway, of the frequency of children playing about there, and of the danger to the lives of children entering said manway, or by the exercise of reasonable care could have known all such. That it became and was the duty of the defendant to nail and securely fasten the door to said shed by proper bars and barriers, and to keep and maintain said door so fastened that children could not enter there; that notwithstanding said duty, and wholly in disregard of the same, the said defendant carelessly and negligently and knowingly suffered and permitted the said door to said shed to be and remain open, and that said manway and stairway leading down from the same exposed to the use of children and to their great danger of the loss of life therein.

“That the plaintiff was, on and prior to the 13th. day of June, 1931, the father of one Courtland J. Drew, who was a strong, healthy, bright boy, and possessed of all the natural instincts of childhood, and was eleven years of age; that the plaintiff and his wife at all times vigilantly watched after the safety of said child; that on said day plaintiff and his wife permitted their said son Courtland, accompanied by an older sister and younger brother, to visit the home of their neighbor, Riley Edrington, about one mile distant, to play with the Edrington children; that Mr. and Mrs. Edrington have a number of children and they are both experienced in handling children and in looking after their welfare; that Mrs. Edrington was at home on that day and carefully looked after said children, including Courtland; that the residence of Riley Edrington was located about 150 feet from said manway, but the view thereof was entirely obstructed by the hillside, trees and undergrowth; that on said day, about 4 o'clock p. m. the said Courtland J. Drew, accompanied by his younger brother and one of the Edrington boys about the same age, without any fault of plaintiff or any member of his family, and without any fault of Mrs. Edrington, and without any knowledge on her part, wandered into said shed through said open doorway, and started to descend said stairway; that said Courtland J. Drew descended the first flight of steps...