Penso v. McCormick

• Citation: 25 N.E. 156, 125 Ind. 116
• Case Date: September 19, 1890
• Court: Supreme Court of Indiana

125 Ind. 116
25 N.E. 156

Penso
v.
McCormick et al.

Supreme Court of Indiana.

Sept. 19, 1890.

Appeal from circuit court, Carroll county; John H. Gould, Judge.

Judson Applegate and Charles R. Pollard, for appellant. Jos. A. Sims, for appellees.

Olds, J.

This is an action brought by the appellant against the appellees for damages resulting to William Penso, an infant, of the age of 8, 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 8 years of age, at the time of the happening of the grievances complained of, and that for 7 years prior to that time he had resided with a family in the town of Rockfield, in Carroll county, Ind.; 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, inclosed, and were used by the citizens of the 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 4 to 5 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 20 bushels of ashes, and filled the cavity so made with embers and cinders, hot, glowing, and burning from the fire-box of the engine;

[25 N.E. 157]

that appellees erected no barriers about the smouldering 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 outer 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 smouldering, 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 onto 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, he 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...