Kotowski v. Taylor

• Citation: 114 A. 861,31 Del. 430
• Court: Delaware Superior Court
• Decision Date: 30 March 1921
• Parties: STANISLAW KOTOWSKI v. AARON K. TAYLOR

114 A. 861

31 Del. 430

STANISLAW KOTOWSKI v. AARON K. TAYLOR

Superior Court of Delaware, New Castle County

March 30, 1921

Superior Court for New Castle County, March Term, 1921.

SUMS. CASE, No. 5, September Term, 1920.

Action by Stanislaw Kotowski against Aaron K. Taylor.

Directed verdict for defendant.

Evidence was introduced by the plaintiff to show that the defendant was the owner of a sand pit located at Ashley, New Castle county; that the sand pit had been operated off and on, for a period of about twenty years; that the method of taking sand from the pit was by undercutting, to secure the best sand that the depth of the pit was from four to eight feet; that the place of the accident was located about three hundred feet from the house of the plaintiff, a tenant of the defendant at Circle City, situate in the plane of the dugout or pit; that defendant had been seen near the pit about a week before the accident, and at various times prior to that time; that on the day of the accident, Jesse, son of the plaintiff, aged six years and a half, was playing with other children, in and around the premises when the wall or rim of the pit where they were playing caved in, entirely covering plaintiff's son with earth, causing his death; that plaintiff and his wife had previously forbidden their child to go near the place of the accident; that the boy was healthy, in normal physical condition, and of average mentality.

The defendant testified that he had owned the premises for about seven years, but had not hauled sand from there since 1917 that people frequently purchased sand by the load from him and were instructed by him to keep the bank of the pit cut down, and in a safe condition; that unknown persons had hauled sand from the pit without his knowledge; that he had never seen the bank when it had been left undercut and unsafe, or received any complaint to that effect. Other witnesses testified that, with the permission of the defendant, they had dug and hauled sand from the pit, but had always left the bank in a safe condition, as they had been instructed to do by the defendant. Another witness, a tenant of the defendant, who lived at Circle City, testified that he never saw the bank of the pit left undercut, or in an unsafe condition. Defendant went to the pit, Circle City, to collect rents.

Generally the evidence disclosed that the place called the sand pit was commenced many years ago by digging out on the side of a hill for sand and gravel, and that on the premises from which sand and gravel had been removed, several tenement houses had been built, known as Circle City, all belonging to the defendant, including the house in which the plaintiff lived with his family at the time of the accident. The outer wall, or embankment, of the arc of the worked premises was probably two hundred feet in length and from four to eight feet in height.

When plaintiff rested, the court was requested to instruct the jury to return a verdict for defendant.

For the defendant it was contended that the bare fact of ownership of real property imposes no responsibility for a nuisance on it. 29 Cyc. 1203; Wolf v. Kilpatrick, 101 N.Y. 146 (151), 4 N.E. 188, 54 Am. Rep. 672; Boomer v. Wilbur, 176 Mass. 482, 57 N.E. 1004, 53 L. R. A. 172. This is true, either in the case of an independent contractor, or a lessee or a licensee. 38 Cyc. 480-481; Peachey v. Roland & Evans, 76 E. C. L. 182; Inhabitants of Rockport v. Rockport Granite Co., 177 Mass. 246, 58 N.E. 1017, 51 L. R. A. 779; Reedie v. Railroad Co., 4 Exch. 244; Allen v. Smith, 76 Me. 335; Ahern v. Steel, 115 N.Y. 203, 22 N.E. 193, 5 L. R. A. 449, 12 Am. St. Rep. 778; Wasson v. Petit, 117 N.Y. 118, 22 N.E. 566, 5 L. R. A. 794.

Where a nuisance is created on land of another without his knowledge, he is not liable for injury or damage caused by it. 29 Cyc. 1203, 1204; Moore v. Langdon, 2 Mackey, 127, 47 Am. Rep. 262; Inhabitants of Rockport v. Rockport Granite Co., 177 Mass. 246, 58 N.E. 1017, 51 L. R. A. 779; Brimberry v. Railway Co., 78 Ga. 641, 3 S.E. 274, Grogan v. Foundry Co., 87 Mo. 321; Rich v. Basterfield, 56 E. C. L. 782 (799); Laugher v. Pointer, 5 B. & C. 547, 12 E. C. L. 311; Brown v. McAllister, 39 Cal. 573; Caldwell v. Slade, 156 Mass. 84, 30 N.E. 87; Handyside v. Powers; 145 Mass. 123, 13 N.E. 462; Mellen v. Morrill, 126 Mass. 545, 30 Am. Rep. 695.

In order to make the defendant liable, it must be shown that he was guilty of negligence; that he had knowledge of the dangerous condition of the ground and that he owed some duty to the plaintiff. 47 Amer. Rep. 262, 5 B. & C 547.

The defendant owned the land in question, but did not occupy the same. The sand dug from the bank was either done by a licensee, or by a trespasser. The work was done solely on account of a licensee or trespasser and as his own business. It has not been shown that the defendant committed the act complained of, or that he participated in it. He was not responsible for it. It has not been shown that he had knowledge that the bank had been made unsafe, or that it had been left unsafe for such a length of time that the law would impute knowledge to him He was, therefore, without negligence, which is the gist of this action. Robbins v. City of Chicago, 4 Wall. (U.S.) 679, 18 L.Ed. 427.

The injury complained of was caused by the collateral negligence of the trespasser or licensee working for himself. Rockport v. Granite Co. supra.

The principle by which all these cases are governed is the general one that a person who receives an injury from another must proceed against the party by whom the injury is inflicted. There is no evidence before the court of a wrongful act committed by the defendant.

In reply, it was urged for the plaintiff that he is entitled to a recovery if his child was killed by the negligence of the defendant in maintaining a sand pit or cave which was attractive to children and in a place where it was reasonably proper for children to play, if the defendant did not provide suitable warning and protection appropriate to the age and condition of children who played there. Talty v. Atlantic, 92 Iowa 135, 60 N.W. 516; Fink v. Missouri Furnace Co., 10 Mo.App. 61. And this is so, notwithstanding that the defendant may have authorized a licensee to take sand or gravel at such times and in such manner as such licensee saw fit. Rockport v. Rockport Granite Co., 177 Mass. 246, 58 N.E. 1017, 51 L. R. A. 779.

The defendant is liable if he knew of the dangerous condition of the premises and such notice may consist either of actual knowledge or may be derived from the fact that the premises were in such condition for a long period of time. Venderbeck v. Hendry, 34 N. J. Law, 467; Talty v. City of Atlantic, 92 Iowa 135, 60 N.W. 518.

The defendant is liable if he maintained a sand pit dangerous to children and of such character as naturally to attract them to enter the pit to play, notwithstanding that the said child was at the time of the accident a trespasser on the premises. Talty v. Atlantic, 92 Iowa 135, 60 N.W. 518; Cooley on Torts, 127; (note) 19 L. R. A. (N. S.) 1153; Barrett v. Southern Pacific Railroad Co., 91 Cal. 296, 27 P. 666, 25 Am. St. Rep. 186.

When a parent is not present to exercise care for a child, the fact that the parent may have been guilty of negligence in permitting the child to play in a place of danger is no defense. Berry v. Lake Erie R. R. Co. (C. C.) 70 F. 679, 681.

All the circumstances of a case must be taken into account and the question to be determined is whether the plaintiff took as much care of his child as...