Spengler v. Williams
| Citation | 67 Miss. 1,6 So. 613 |
| Court | United States State Supreme Court of Mississippi |
| Decision Date | 28 October 1889 |
| Parties | ELIZABETH SPENGLER, ADMR., v. CATHERINE WILLIAMS |
FROM the circuit court of Warren county, HON. RALPH NORTH, Judge.
The facts are stated in the opinion. The plaintiff recovered a verdict and judgment for $ 1000, and, after motion for a new trial was overruled, defendant appealed.
Affirmed.
Dabney McCabe & Anderson, for appellant.
There was a total lack of evidence to show that the lumber pile was an object of attraction to children, and that Spengler knew it. It was necessary to prove these things. It was necessary to aver them in the declaration, and being averred there must be proof to sustain them. There cannot be any presumption that children would play about the pile, and that Spengler knew this.
The proof shows that the street was an unfrequented one terminating in a deep hollow, and being so little used there was no negligence in leaving lumber piled in it. Surely the court cannot say that a bare pile of lumber in such a place possesses such qualities, and to that extent that it was unnecessary to have some proof that it was attractive to children, and that Spengler was aware of this. Plaintiff failed to make out the case, and the verdict should have been set aside.
R. V Booth, for appellee.
How could it be proved that the lumber pile was attractive to children, and that Spengler knew it? That it was attractive to them is shown by the fact that four little boys were playing around it when the child was killed, and one of defendant's witnesses had previously seen eight or ten boys playing on it. That Spengler knew this is to be deduced from the common knowledge and experience of mankind. We know from observation and experience the habits, customs, instincts, and tastes of children, and we understand that anything out of the usual order of things is calculated to entice and fascinate them.
This is an action by appellee to recover against the estate of S Spengler damages for the death of her son caused by the negligence of said Spengler. The declaration avers that Spengler negligently and carelessly piled a large lot of lumber in the public street in an unsafe and dangerous manner; that her son, a child of seven years, and other children in the vicinity were accustomed to play in and about said streets, and on the day of October, while they were so playing around said lumber, by reason of the careless and negligent manner in which it had been piled, it fell upon and killed her said son. There is an averment in the declaration that "the said Spengler well knew that the piling of timber in heaps in said street was well calculated to attract and entice children of tender age to play above and around it, yet notwithstanding this he kept said timber piled in its irregular and dangerous condition for a long period of time, and until the death of her...
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