W.F. Bradley Lumber Co. v. Crowell

• Decision Date: 05 October 1937
• Docket Number: 3 Div. 790
• Parties: W.F. BRADLEY LUMBER CO. v. CROWELL.
• Court: Alabama Court of Appeals

178 So. 66

28 Ala.App. 12

W.F. BRADLEY LUMBER CO. v. CROWELL.

3 Div. 790

Court of Appeals of Alabama

October 5, 1937

Rehearing Denied Nov. 9, 1937

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Action for damages for personal injuries by Harry Crowell, Jr., a minor, suing by his next friend, Harry Crowell, Sr., against W.F. Bradley Lumber Company. From a judgment for plaintiff defendant appeals.

Reversed and remanded.

Certiorari denied by Supreme Court in W.F. Bradley Lumber Co. v Crowell, 178 So. 68.

Count charging lumber company with liability for injuries received by 11 year old boy when he stepped on ash pile covered with a crust concealing fire therein while he was playing on premises, where lumber company knew that children frequently resorted to premises for amusement, did not state a cause of action.

The following is the complaint:

"Count One. The plaintiff, Harry Crowell, Jr., suing by his father and next friend, Harry Crowell, Sr., claims of the defendant the sum of ten thousand and no/100 ($10,000.00) dollars, as damages, for that he avers that on to-wit, the 26th day of March, 1936, the defendant's officers agents, servants or employes, while acting within the line and scope of their employment, did negligently permit large deposits of sawdust ashes or ashes from other fuels used by the defendant to be deposited in large quantities close to their sawmill, the said ashes containing fire being concealed by a crust or a sand like cover on the top, and dangerous to children, to be and remain upon the premises used and occupied by the defendant East of North Court Street in the City of Montgomery, Montgomery County, Alabama, unguarded and uncovered and in such condition as to be dangerous to children; the plaintiff avers that the defendant knew that children were in the habit of playing in the vicinity and upon the defendant's said premises, and that the defendant's officers, agents, servants and employes, while acting within the line and scope of their employment, either knew or in the exercise of due diligence, should have known, that the said deposit of ashes contained such hot coals as aforesaid, was a place of great danger to the plaintiff who was a minor of eleven years of age; and the plaintiff further avers that on to-wit, March 26, 1936, while the plaintiff was on said premises by implied invitation of said defendant, their officers, agents, servants or employes as such, the plaintiff stepped through the crust or sand like cover into the fire and was severely burned, wherefore, he received personal injuries in this to-wit: He was permanently injured; he was caused to suffer much physical pain and mental anguish.

"And plaintiff says that the burns, as aforesaid, was proximately caused by the negligence of the defendant, their officers, agents, servants and employes, while acting in the line and scope of their employment as aforesaid, wherefore, this suit.

"Count Two. The plaintiff, Harry Crowell, Jr., suing by his father and next friend, Harry Crowell, Sr., claims of the defendant the sum of ten thousand and no./100 ($10,000.00) dollars as damages for that he avers that on to-wit, the 26th day of March, 1936, the defendant's officers, agents, servants or employes, while acting within the line and scope of their employment, did negligently permit large deposits of sawdust ashes or ashes from other fuels used by the defendant while in the business of operating a sawmill, to be deposited in large quantities close to their sawmill, the said ashes containing fire which was not visible to the naked eye, there was no smoke coming from the ash pile visible to the eye; the fire in the said ashes was concealed, and dangerous to children, to be and remain upon the premises used and occupied East or North Court Street by the defendant in the City of Montgomery, Montgomery County, Alabama, unguarded and uncovered, and in such condition as to be dangerous to children, the plaintiff avers that the defendant knew that children were in the habit of resorting to their premises for amusement, and that the defendant's officers, agents, servants and employes, while acting within the line and scope of their employment, knew that the said deposit of ashes contained such hot coals or fire, as aforesaid, was a place of great danger to the plaintiff who is a minor of eleven years of age; and the plaintiff further avers that on to-wit, March 26, 1936, while the plaintiff was on

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