Penso v. McCormick
| Decision Date | 19 September 1890 |
| Docket Number | 14,322 |
| Citation | 25 N.E. 156,125 Ind. 116 |
| Parties | Penso, by Next Friend, v. McCormick et al |
| Court | Indiana Supreme Court |
From the Carroll Circuit Court.
Judgment reversed, at costs of appellees, and for further proceedings in accordance with this opinion.
J Applegate and C. R. Pollard, for appellant.
J. A Sims, for appellees.
This is an action brought by the appellant against the appellees for damages resulting to William Penso, an infant of the age of eight, by falling into a pit of hot ashes and burning embers while crossing the mill-yard of the appellees.
Appellees demurred to the complaint for want of facts. The court sustained the demurrer, to which ruling the appellant excepted and prosecutes this appeal and asks a reversal on the ground that the court erred in sustaining the demurrer.
The complaint alleges the appellant, William Penso, to have been an orphan about eight years of age at the time of the happening of the grievance complained of, and that for seven years prior to that time he had resided with a family in the town of Rockfield, in Carroll county, Indiana; that the appellees were conducting, and for many years had conducted, a saw-mill in said town; that the mill was situated in the most public part of the town, or village, near to a public highway and railway station, in said town; that the grounds surrounding said mill were not and never had been enclosed, and were used by the citizens of town as a passage way from one street to another, and also used for a play-ground for the children of said town, including the appellant, Penso, with the knowledge, approbation and consent of the appellees; that for months immediately prior to the 21st day of May, 1887, the time of the injury to said appellant, there was a mound on said mill-grounds from four to five feet high, made and formed by the appellees of ashes and cinders before that time accumulated at the mill and deposited on the mill-grounds, from which mound of ashes all heat had escaped, and such mound constituted a favorite play-ground for the children of the town, including the appellant, where they were accustomed to gather and play up until said 21st day of May, 1887; that upon said day, without giving any notice to the appellant, or to the public generally, the appellees excavated and removed from one side of the base of said mound about twenty bushels of ashes and filled the cavity so made with embers and cinders, hot, glowing and burning, from the fire-box of the engine; that appellees erected no barriers about the smoldering mass of embers and cinders, nor did they give any warning that it was dangerous to step upon it; that in a very short time the entire surface ceased to give out light, heat and smoke, and presented the appearance of the remainder of the mound, and to all appearance all parts of the mound were the same in condition and structure, but in fact that portion so recently deposited was a smoldering, burning heap beneath the surface, and while in such condition, on said day, the appellant was sent by the persons with whom he lived for the cows; that the cows were then and before that time accustomed to pasture on the commons in said town and the uninclosed land in and about said mill-yard; that appellant, while in search of the cows, passed in and attempted to cross said mill-yard, passing on to the top of the mound safely, and seeing nothing to admonish him of any danger or the condition of the recently deposited embers and cinders, in pursuing his course attempted to pass down upon the other side of the mound, when, without any fault upon his part, he stepped into the mass of burning embers and cinders and received very severe injuries.
The allegations of the complaint show that the appellees, in removing the ashes, embers and cinders from their saw-mill and depositing them on their uninclosed mill-yard, in a public place in the town and near to a public street, had built a mound, and that for several months prior to the time of appellant's injuries the embers had ceased burning, and the mound had cooled and was in a safe condition to pass over, and the citizens of the town had been accustomed to pass over it for months, and during which time the children of the town, including appellant, had been accustomed to play upon the mound so built of ashes, embers and cinders; that without any notice or warning the appellees, on the day of the injury, had excavated a hole or pit in one side of the heap or mound, and refilled it with hot and burning coals, embers and cinders, the top of which immediately cooled, and gave no signs of any change in the condition of the mound, or any warning of danger to those who had been accustomed to pass over or play upon the mound. And the question is presented whether, under such circumstances, the owners of the mill were not required, in making such change and creating such a dangerous pit in such a public place and near to a public street, to give proper notice of the changed condition of the mound, and of the danger imminent from passing over it.
As a general rule the owner of land has the right to the sole use and occupation of it, but such use and enjoyment of it must be exercised with a due regard for the public good and with a reasonable and humane regard for the welfare and rights of others.
The case of Young v. Harvey, 16 Ind. 314, was brought to recover the value of a horse killed through the negligence of the defendant. The facts were: Harvey, the defendant, commenced digging a well upon a lot owned by him he sunk it to a depth of six feet, being forty-two inches across, and then abandoned it. It was located in an uninclosed lot, near the line of a street, in a suburb of Indianapolis. ...
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